Opinion
Index No. 605215/2020 Mot. Seq. No. 001 MG
12-09-2020
JERELENE J. CAIN, Plaintiff, v. LORETTA B. NAPOLITANO, Defendant.
PLTF'S ATTORNEY: ROSENBERG & GLUCK, LLP DEFT'S ATTORNEY: MARTYN MARTYN SMITH & MURRAY
Unpublished Opinion
Orig. Return Date: September 21, 2020
Final Return Date: October 19, 2020
PLTF'S ATTORNEY:
ROSENBERG & GLUCK, LLP
DEFT'S ATTORNEY:
MARTYN MARTYN SMITH & MURRAY
PRESENT: Hon. Paul J. Baisley. Jr., J.S.C.
HON. PAUL J. BAISLEY, JR., J.S.C.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, filed August 20,2020; Notice of Motion/Order to Show Cause and supporting papers _____; Answering Affidavits and supporting papers by defendant, filed October 22. 2020; Replying Affidavits and supporting papers by plaintiff, filed October 23, 2020; Other____; it is
ORDERED that the motion by plaintiff Jerelene Cain for summary judgment in her favor on the issue of liability and dismissing defendant's affirmative defenses of comparative negligence, assumption of risk, and failure to wear a seatbelt is granted; and it is further
ORDERED that a preliminary conference shall be held on January 6, 2021.
This is an action to recover damages for injuries allegedly sustained by plaintiff Jerelene Cain as a result of a motor vehicle accident, which occurred on October 23, 2019, at the intersection of Veterans Memorial Highway and Harned Road, in the Town of Smithtown, New York. The accident allegedly occurred when a vehicle owned and operated by defendant Loretta Napolitano attempted to make a left turn and collided with plaintiffs vehicle.
Plaintiff now moves for summary judgment in her favor on the issue of liability on the ground that defendant violated Vehicle and Traffic Law §§ 1141 and 1163 by making a left turn into the path of her vehicle traveling with the right-of-way. Plaintiff also seeks to dismiss defendant's affirmative defenses sounding in comparative negligence, assumption of risk, and failure to wear a seatbelt. Plaintiff submits, in support of the motion, copies of the pleadings, photographs, her affidavit, and a certified police report. In opposition, defendant argues that further discovery is necessary before summary judgment may be considered, and that triable issues of fact exist as to whether she was negligent and plaintiff was comparatively negligent.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
A failure to comply with the Vehicle and Traffic Law constitutes negligence as a matter of law (Marcel v Sanders, 123 A.D.3d 1097, 1 N.Y.S.3d 230 [2d Dept 2014]; Adobea v Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 [2d Dept 2014]; Colpan v Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 949 N.Y.S.2d 124 [2d Dept 2012]). A driver is negligent if he or she failed to see that which, through the proper use of senses, should have been seen (Nohs v Diraimondo, 140 A.D.3d 1132, 35 N.Y.S.3d 209 [2d Dept 2016]; Thompson v Schmitt, 1A A.D.3d 789, 902 N.Y.S.2d 606 [2d Dept 2010]). Pursuant to Vehicle and Traffic Law § 1141, a vehicle intending to turn left within an intersection or into an alley, private road, or driveway must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Pursuant to Vehicle and Traffic Law § 1163, a driver shall not "turn a vehicle at an intersection . . . unless and until such movement can be made with reasonable safety." A driver who attempts to make a left turn when it is not reasonably safe to do so, such as when another vehicle is lawfully present in the intersection, is in violation of this provision of the Vehicle and Traffic Law (Foley v Santucci, 135 A.D.3d 813, 23 N.Y.S.3d 338 [2d Dept 2016]; Krajiniak v Jin Y Trading, Inc. ,114 A.D.3d 910,980 N.Y.S.2d 812 [2d Dept 2014]; Ducie v Ippolito, 95 A.D.3d 1067, 944 N.Y.S.2d 275 [2d Dept 2012]; Loch v Garber, 69 A.D.3d 814, 893 N.Y.S.2d 233 [2d Dept 2010]). A driver is not comparatively negligent in failing to avoid the collision if he or she has a right-of-way and only has seconds to react to a vehicle that has failed to yield (see Foley v Santucci, supra; Ducie v Ippolito, supra; Breen v Seibert, 123 A.D.3d 963, 999 N.Y.S.2d 176 [2d Dept 2014]; Bennett v Granata, 118 A.D.3d 652, 987 N.Y.S.2d 424 [2d Dept 2014]; Vainer v DiSalvo, supra).
Plaintiff established her prima facie entitlement to summary judgment by showing that defendant was negligent in making a left turn without yielding the right-of-way (see Vehicle and Traffic Law § 1141; Foley v Santucci, supra). By her affidavit, plaintiff stated that she was wearing her seatbelt and operating her vehicle westbound on Veterans Memorial Highway within the posted speed limit. She stated that as she approached the intersection of Veterans Memorial Highway and Harned Road, the traffic signal controlling her lane of traffic was green. Plaintiff stated that as she approached the intersection, defendant's vehicle was stopped in the northernmost turning lane of the eastbound traffic. She explained that as she proceeded through the intersection with a green traffic light in her favor, defendant's vehicle "suddenly and without warning" attempted to make a left turn across the westbound lanes of traffic towards Harned Road, striking the driver's side of her vehicle. Plaintiff stated that defendant did not initiate any turning movement until after she entered the intersection and that she was unable to take evasive action to avoid the collision.
As plaintiff had the right-of-way, her vehicle was lawfully in the roadway at the time of impact, and she was entitled to assume that defendant would obey traffic laws requiring her to yield (see Rohn v My, 167 A.D.3d 1054, 91 N.Y.S.3d 256 [2d Dept 2018]; Ming-Fai Jon v. Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Katikireddy v Espinal 137 A.D.3d 866, 26 N.Y.S.3d 775 [2d Dept 2016]). The fact that defendant was unable to travel through the roadway without striking plaintiffs vehicle is evidence that plaintiffs approaching vehicle was an immediate hazard (see Matter of Gerber v New York State Dept. of Motor Vehs., 129 A.D.3d 959. 11 N.Y.S.3d 648 [2d Dept 2015]; Yelder v Walters, 64 A.D.3d 762, 883 N.Y.S.2d 290 [2d Dept 2009]). By failing to yield the right-of-way to plaintiffs vehicle and making a left turn into the path of such vehicle, defendant violated Vehicle and Traffic Law § 1141 and was negligent as a matter of law.
When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law'' (Bank of N.Y.v. Penalver, 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 [2d Dept 2015]; South Point, Inc. v Redman, 94 A.D.3d 1086, 1087, 943 N.Y.S.2d 543 [2d Dept 2012]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v. Farrell, 57 A.D.3d 721, 723. 869 N.Y.S.2d 597 [2d Dept 2008]; see Greco v. Christoffersen, 70 A.D.3d 769, 896 N.Y.S.2d 363 [2d Dept 2010]).
In this case, plaintiff made a prima facie case that she was not comparatively negligent, as she stated that her vehicle was already in the intersection when defendant failed to yield and entered the intersection (see Foley v Santucci, supra; Ducie v Ippolito, supra; Breen v. Seiberl, supra; Bennett v Granata, supra), and that the assumption of risk doctrine is not applicable under the circumstances of this action (see Custodi v Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268 [2012]; Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]). Plaintiffs affidavit also established that she was wearing a seatbelt at the time of the accident. Therefore, plaintiff met her burden for dismissal of the affirmative defenses sounding in comparative negligence, assumption of risk, and failure to wear a seatbelt.
The burden now shifts to defendant to raise a triable issue of fact as to whether there was a non-negligent explanation for the accident (see Alvarez v Prospect Hosp., supra). Defendant submits an affirmation of her attorney alleging that further discovery is necessary. However, this affirmation has no probative weight and does not fulfill defendant's duty to provide a non-negligent explanation for the collision (see Zuckerman v City of New York, supra; Orellana v Maggies Paratransit Corp., 138 A.D.3d 941, 30 N.Y.S.3d 224 [2d Dept 2016]). As defendant has personal knowledge of the relevant facts underlying the accident, her purported need to conduct discovery does not warrant denial of the motion (see Pierre v Demoura, 148 A.D.3d 736, 48 N.Y.S.3d 260 [2d Dept 2017]; Turner v Butler, 139 A.D.3d 715, 32 N.Y.S.3d 174 [2d Dept 2016]; Deleg v Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 [2d Dept 2011]).
By her affidavit, defendant stated that her traffic light was green from the time she first saw it until the collision occurred. She stated that she brought her vehicle to a stop past the end of the turn lane and into the intersection prior to attempting to turn left. Defendant explained that she saw plaintiffs vehicle 10 seconds prior to the accident and believed she had enough time and space to complete her turn before plaintiffs vehicle entered the intersection. She stated that the vehicles collided after defendant's vehicle moved approximately 10 feet from where it was stopped in the intersection. She also stated that she "did not realize the high speed in which plaintiff was traveling which caused there to be an impact." However, defendant's assertion concerning plaintiffs rate of speed was speculative and insufficient to raise a triable issue of fact (see Rohn v Aly, supra; Hatton v Lara, 142 A.D.3d 1047, 37 N.Y.S.3d 604 [2d Dept 2016]; Loch v Garber, 69 A.D.3d 814, 893 N.Y.S.2d 233 [2d Dept 2010]; Adobea v Junel, supra).
Accordingly, the motion is granted.