Opinion
No. 13–3403.
02-07-2017
Michael J. MISZKO, Plaintiff, v. Roberta DECKER, Donald Decker, John Vining and Rose E. Rubin, Defendants. Donald Decker and Roberta Decker, Plaintiffs, v. John Vining, Michael J. Miszko and Rose E. Rubin, Defendants. Action No. 2 Linda Ritvanen, Plaintiff, v. John Vining, Roberta Decker, Donald Decker, Michael J. Miszko and Rose E. Rubin, Defendants. Action No. 3.
Steve Gokberk, Esq., Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, for Michael J. Miszko in Action No. 1. Ivan Kalter, Esq., Kalter, Kaplan, Zeiger & Forman, Esqs., Woodbourne, for Donald Decker and Roberta Decker, In Action No. 2. David J. Taffany, Esq., Anderson, Moschetti & Taffany, PLLC, Latham, for Linda Ritvanen in Action No. 3. Erin E. Hennessy, Esq., Picciano & Schahill, PC, Westbury, for Rose E. Rubin in Actions No. 1, 2 and 3. David S. Klausner, PLLC, Klausner Law Firm, White Plains, for Roberta Decker and Donald Decker, in Actions 1 and 3. James Rogers, Esq., Wilson, Bave, Conboy, Cozza & Couzens, PC, White Plains, for Michael J. Miszko in Actions No. 2 and 3. James Taylor, Esq., Law Offices of Brian D. Richardson, Esq., Albany, for John Vining in Actions No. 1, 2 and 3. (No appearance on these motions).
Steve Gokberk, Esq., Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, for Michael J. Miszko in Action No. 1.
Ivan Kalter, Esq., Kalter, Kaplan, Zeiger & Forman, Esqs., Woodbourne, for Donald Decker and Roberta Decker, In Action No. 2.
David J. Taffany, Esq., Anderson, Moschetti & Taffany, PLLC, Latham, for Linda Ritvanen in Action No. 3.
Erin E. Hennessy, Esq., Picciano & Schahill, PC, Westbury, for Rose E. Rubin in Actions No. 1, 2 and 3.
David S. Klausner, PLLC, Klausner Law Firm, White Plains, for Roberta Decker and Donald Decker, in Actions 1 and 3.
James Rogers, Esq., Wilson, Bave, Conboy, Cozza & Couzens, PC, White Plains, for Michael J. Miszko in Actions No. 2 and 3.
James Taylor, Esq., Law Offices of Brian D. Richardson, Esq., Albany, for John Vining in Actions No. 1, 2 and 3.
(No appearance on these motions).
RICHARD L. MOTT, J.
Defendants Roberta Decker (hereinafter, "R.Decker") and Donald Decker (hereinafter, collectively, "Deckers") move for summary judgment dismissing all claims against them in Actions 1 and 3, in these actions alleging negligence resulting in a chainreaction motor vehicle accident. Plaintiffs Deckers support the motion. Plaintiffs Michael J. Miszko (hereinafter, "Miszko") and Linda Ritvanen (hereinafter, "Ritvanen") oppose. Rose E. Rubin (hereinafter, "Rubin") opposes and cross moves for summary judgment on liability.
Donald Decker's alleged liability is as owner of the vehicle that Roberta Decker was operating. He was also a passenger therein at the time of the accident.
This motion also seeks preclusion based upon Vining's failure to submit to a deposition. Following the motion Vining was deposed and all parties submitted Supplemental Affirmations with respect thereto, rendering said motion moot.
Rubin is a Defendant in all three actions and her cross-motion for summary judgment in each is based upon the identical factual assertions and addressed in a separate section below.
Defendant Miszko moves to dismiss the complaints in Actions 2 and 3 claiming absence of liability. Plaintiff Miszko in Action 1 agrees. Plaintiffs Deckers maintain that a grant of summary judgment for Miszko requires identical relief for them. Rubin opposes and cross moves for summary judgment on liability. Miszko and Ritvanen oppose the cross-motion.
Background
These actions arise from a four-vehicle collision on U.S. Route 209, a two lane road running north-south through an area posted for wild-life crossings. R. Decker brought her vehicle to a stop while travelling in the northbound lane and, seconds later, was struck in the right rear by a vehicle operated by John Vining (hereinafter, "Vining"), thereby propelling her vehicle across the double solid yellow line into the southbound lane where it struck the vehicle that Miszko was operating, head-on. The Deckers' vehicle then spun 180 degrees, advancing northward in the southbound lane, striking the left front of the vehicle Rubin had been operating just behind Miszko. Miszko's vehicle continued south, struck a guardrail, spun and rolled over before stopping. Ritvanen was a front seat passenger in Miszko's vehicle.
The Deckers denied a memory of the accident at the scene. At her deposition, R. Decker states she observed a utility van stopped to the side of the northbound lane at approximately 10 to 11 car lengths away causing her to slow from her 55 mph speed. She also reports seeing a wild turkey passing in front of the van from east to west. She came to a stop in her lane some two car lengths from the van. The remaining parties deny having seen a stopped van.
Vining states he was travelling 45 mph and began braking and veering to the right, 5 to 6 car lengths or sixty to seventy feet before impact upon seeing the Deckers' vehicle slow and a big black bird crossing the road some 30 feet in front of the Deckers' vehicle. Further, he reports that R. Decker had swerved to the left and crossed the double solid yellow line into the southbound lane before stopping.
Miszko estimates Vining's speed at 60 to 65 mph and that the Deckers' vehicle was stopped in the northbound lane towards the center of the road at the time of impact. He states that Rubin had been tailgating him on and off prior to the accident and that he later observed red paint on his vehicle at the auto body shop.
Ritvanen states she felt a second impact from the rear, but had been dozing and lost consciousness during the accident.
Rubin was driving a red Volkswagen behind Miszko and braked when she saw the Deckers' vehicle cross-over into her lane of travel at a distance of approximately three car lengths.
Defendants Deckers' Motion—Action No. 1 and 3
Parties' Contentions
The Deckers claim that their vehicle was rear-ended after coming to a full stop wholly within their lane of travel and that the sole proximate cause of the accident was Vining's negligent conduct in rear-ending their vehicle, propelling it into the opposite lane of travel.
Miszko claims that issues of fact exist as to whether R. Decker acted reasonably and prudently, citing contradictory evidence concerning the existence of a stopped utility van, Vining's account that the Deckers' vehicle must have stopped quickly and that it had crossed the double solid yellow line before impact, thereby causing the vehicle to lurch to the left rather than straight forward upon impact. Further, Miszko questions the reasonableness of stopping in the middle of the road in a 55 mph zone, instead of pulling off to the right. Ritvanen and Rubin reiterate these same arguments.
Discussion
Summary Judgment
Summary judgment is a drastic remedy and should be granted only when no material facts are sufficiently disputed as to warrant a trial. Gaddani v. Dormitory Auth. of State of NY, 43 AD3d 1218, 1219 (3d Dept.2007) citing Matter of LaBier v. LaBier, 291 A.D.2d 730, 732 (3d Dept.2002). The totality of the evidence should be viewed in the light most favorable to the non-moving party and the Court should accord it the benefit of every reasonable inference. Tenkate v. Tops Mkts., 38 AD3d 987, 989 (3d Dept.2007).
The Court's function is issue finding, not issue determination, and where a genuine issue of fact exists, summary judgment must be denied. Gaddani v. Dormitory Auth. of State of NY, 43 AD3d 1218, citing Pronti v. Cicora, 35 AD3d 1007 (3d Dept.2006).
To prevail, the proponent of a summary judgment motion must first "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." See, Ayotte v. Gervasio, 81 N.Y.2d 1062 (1993). A defendant's failure to make a prima facie showing that they are entitled to judgment as a matter of law requires denial of their motion, regardless of the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [1985].
Only when the movant has established a right to judgment as a matter of law does the burden shift to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980) ; Suffolk Co. Dept. of Soc. Servs. v. James M., 83 N.Y.2d 178, 182 (1994) ; Staunton v. Brooks, 129 AD3d 1371 [3d Dept.2015] ; Lacasse v. Sorbello, 121 AD3d 1241 [3d Dept.2014] and a "shadowy semblance of an issue is not enough to defeat" such a motion. S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974] (internal citations omitted).
Emergency Doctrine and Prima Facie Negligence
The emergency doctrine,
"recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context." Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327 [1991].
Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same situation and thus, is dependent upon the accompanying circumstances. Bello v. Tr. Auth. of New York City, 12 AD3d 58, 60 [2d Dept 2004]. Where the evidence supports a finding that a party was confronted by a sudden and unexpected circumstance leaving little time for thought or deliberation, the emergency encounter requires that one's conduct be measured against that of reasonable person, and "in all but the most egregious circumstances, it is for the trier of fact to determine." Davey v. Ohler, 188 A.D.2d 726, 727 [3d Dept 1992] ; Caristo v. Sanzone, 96 N.Y.2d 172, 175 [2001] ; Richards v. Miller, 21 AD3d 1023 [2d Dept 2005]. However, this doctrine has no application where the party seeking to invoke it has contributed to the emergency. Sweeney v. McCormick, 159 A.D.2d 832, 833 [3d Dept 1990] ; Stewart v. Ellison, 28 AD3d 252 [1st Dept 2006] (issue of fact as to whether vehicle that struck skidding motorcycle had a reasonable opportunity to avoid the accident or contributed to the emergency by following too closely). Thus, "summary judgment may be granted when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact." Hubbard v. County of Madison, 93 AD3d 939, 940 [3d Dept 2012].
A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Cortes v. Whelan, 83 AD3d 763 [2d Dept 2011]. Further,
"In multiple-car, chain-reaction accidents the courts have recognized that the operator of a vehicle which has come to a complete stop and is propelled into the vehicle in front of it as a result of being struck from behind is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision. Mohamed v. Town of Niskayuna, 267 A.D.2d 909, 910 [3d Dept 1999].
Here, Vining fails to allege a non-negligent explanation for the rear end impact, such that even if the Deckers' vehicle did stop suddenly in front of Vining, there is no evidence that might tend to explain his failure to keep a safe distance away from the Deckers' vehicle. Ewens v. Roy, 45 AD3d 353 [1st Dept 2007]. Further, he states he was following the Deckers at a prudent distance and merely surmises, but did not observe a quick stop. Kurth v. Lawlor, 183 A.D.2d 1060, 1062 [3d Dept 1992] (it is not the court's role to assess credibility unless untruths are clearly apparent).
Notwithstanding, R. Decker has failed to eliminate all issues of fact as to whether she acted reasonably and prudently where there is contradictory evidence as to the reason and manner of her stop and evidence she crossed the double solid yellow line before impact. Indeed, such a cross-over constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making. DiSiena v. Giammarino, 72 AD3d 873, 874 [2d Dept 2010]. In light of these uncertainties as to whether R. Decker's actions contributed to the accident, summary judgment for the Deckers cannot be sustained. Stewart v. Ellison, 28 AD3d 252 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 852.
Defendant Miszko's Motion—Actions 2 and 3
Parties' Contentions
Miszko moves for summary judgment claiming that he is free from fault due to the emergency situation created by the Deckers' vehicle crossing over into his lane of travel where the impact occurred within a split second thereof.
The Deckers adopt Miszko's arguments, claiming that a finding for Miszko entitles the Deckers to summary judgment.
Ritvanen asserts that an unresolved issues of fact exists because Miszko arguably had a quarter mile view past the point of collision and observed the Vining vehicle coming at a high rate of speed, making the impending collision foreseeable.
"A driver in his proper lane is not required to anticipate that an automobile going in the opposite direction will cross over into his lane of traffic and such a cross-over automatically creates an emergency situation." Williams v. Simpson, 36 AD3d 507, 508 [1st Dept 2007] ; Estate of Mirjani v. DeVito, 135 AD3d 616, 617 [1st Dept 2016]. Further, an individual encountered by such an emergency, not of his/her own making who acts reasonably under the circumstances is relieved of liability. Wenck v. Zillioux, 246 A.D.2d 717 [3d Dept 1998].
Here, because Miszko could not have anticipated the cross-over and impact occurred a split second following same, he is entitled to summary judgment. Indeed, there is nothing to suggest that he should have anticipated that Deckers' vehicle would cross over inasmuch as it was stopping or stopped when he observed it. Having met his initial burden, and there being no competent evidence in rebuttal, Miszko is entitled to summary judgment dismissing the complaints against him. Zuckerman v. City of New York, 49 N.Y.2d at 562.
Rubin's Cross–Motions—Actions 1, 2 and 3
Rubin claims that the last struck vehicle cannot be held liable for the consequences of prior impacts, where, as here, there is no evidence that she was speeding or could have avoided the accident. Further, she claims there is no evidence that her vehicle ever struck Miszko's.
Miszko and Ritvanen claim triable issues of fact exist as to whether Rubin's vehicle struck Miszko's based upon her prior observed "back and forth" tailgating, Ritvanen's having felt a second impact from the rear as she lost consciousness, the red paint on Miszko's vehicle, his missing rear bumper and Rubin's vehicle's front end damage.
Rubin has met her burden on summary judgment through her testimony that her vehicle collided only with the Deckers' vehicle. Lazar v. Fea Leasing, Inc., 264 A.D.2d 818 [2d Dept 1999] (evidence establishing that the defendant's vehicle did not cause accident between plaintiff and defendant or come into contact with it, merits summary judgment).
Miszko and Ritvanen's proffers in rebuttal are speculative because both lost consciousness, Miszko's vehicle rolled, there is no independent evidence of how or at what point a second impact may have occurred and the Deckers' vehicle concededly struck Rubin's front end. LoBianco v. Lake, 62 AD3d 590, 591 [1st Dept 2009] (plaintiff's speculation failed to raise a triable issue of fact as to whether defendant's vehicle struck plaintiff's). Therefore, summary judgment for Rubin is merited. Wenck v. Zillioux, 246 A.D.2d 717 [3d Dept 1998].
Accordingly, Defendants Deckers' motion is denied, Defendant Miszko's motion and Defendant Rubin's cross-motions are granted dismissing the complaints as to the latter two named Defendants. Any remaining contentions have been examined and determined to lack merit.
This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to Defendant Miszko, who is required to comply with the provisions of CPLR § 2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk.
Papers Considered:
Deckers' Motion in Action 1 and 3
Notice of Motion, Statement of Material Facts and Affirmation of Stephen Slater, Esq., dated May 20, 2016 with Exhibits A–I;
Cross–Notice of Motion and Affirmation of Ivan Kalter, Esq., dated June 6, 2016;
Opposition Affirmation and Response to Statement of Material Facts of David J. Taffany, Esq., dated June 23, 2016 with Exhibits 1–2;
Opposition Affirmation of Steve Z. Gokberk, Esq., dated July 7, 2016, with Exhibits A–E;
Notice of Cross Motion and Affirmation in Action 1, of Erin E. Hennessy, Esq., dated August 23, 2016 with Exhibits A–H;
This cross motion is improperly addresses Plaintiff Miszko's proof where the movants are the Deckers.
Reply Affirmation of Erin E. Hennessy, Esq., dated September 28, 2016;
Supplemental Opposition Affirmation of Steve Z. Gokberk, Esq., dated October 4, 2016;
Supplemental Opposition Affirmation of Steve Z. Gokberk, Esq., dated October 25, 2016 with Exhibits A–B;
This is an exact duplicate of Steve Z. Gokberk, Esq., October 4, 2016 submission.
Supplemental Opposition Affirmation of Erin E. Hennessy, Esq., dated October 31, 2016 with Exhibit A.
Supplemental Opposition Affirmation of David J. Taffany, Esq., dated November 1, 2016 with Exhibit A
Supplemental Reply Affirmation of Stephen Slater, Esq., dated November 30, 2016;
Supplemental Reply Affirmation of Ivan Kalter, Esq., dated December 5, 2016.
Miszko's Motion in Action 2 and 3
Notice of Motion and Affirmation of James A. Rogers, Esq., dated August 2, 2016 with Exhibits A–F;
Opposition Affirmation of David J. Taffany, Esq., dated August 18, 2016 with Exhibit 1;
Affirmation in Support of Ivan Kalter, Esq., dated August 24, 2016;
Affirmation in Support of Steve Z. Gokberk, Esq., dated August 25, 2016 with Exhibits A–B;
Opposition Affirmation of Erin E. Hennessy, Esq., dated August 23, 2016 with Exhibits A–E;
Notice of Cross Motion in Action 2 and Affirmation of Erin E. Hennessy, Esq., dated August 23, 2016 with Exhibits A–H;
Notice of Cross Motion in Action 3 and Affirmation of Erin E. Hennessy, Esq., dated August 23, 2016 with Exhibits A–H;
Response to Rubin's Statement of Material Facts and Opposition Affirmation of David J. Taffany, Esq., dated September 15, 2016 and September 21, 2016, respectively;
Affirmation of Ivan Kalter, Esq., dated August 24, 2016;
Reply Affirmation to Ritvanen's Opposition of James A. Rogers, Esq ., dated August 29, 2016;
Reply Affirmation of James A. Rogers, Esq., to Rubin's Opposition, dated August 29, 2016;
Opposition to Cross Motion Affirmation Steve Z. Gokberk, Esq., dated September 9, 2016.
Reply Affirmation of Erin E. Hennessy, Esq., dated September 28, 2016.
Not Considered as Moot:
Notice of Cross–Motion to Preclude of James A. Rogers, Esq., dated June 16, 2016.