Opinion
7934/03.
Decided April 22, 2008.
The plaintiffs are represented by Block O'Toole, by David L. Scher, Esq., of counsel, the defendants the City of New York and the Department of Transportation are represented by Michael A. Cardozo, Corporation Counsel of the City of New York, by Carolyn M. Planas, Esq., of counsel.
The defendants Lucila Vera and Washington Vera are represented by McCabe, Collins, McGeough Fowler, LLP, by John J. Connelly, Esq., of counsel, the defendant Petrocelli Electric Co., Inc., is represented by the Law Offices of Edward Garfinkel by Evelina Lizhansky, Esq., of counsel.
In this personal injury action arising from an automobile accident, defendant Pertocelli Electric Co., Inc. ("Petrocelli"), moves for summary judgment pursuant to CPLR § 3212. The City of New York and New York City Department of Transportation (the "City"), cross move pursuant to CPLR § 3212 for summary judgment.
The plaintiff, New York City Police Officer Andres Munoz ("Munoz") alleges that his patrol car was struck by the defendant Washington Vera ("Vera") when responding to an emergency radio call with the car's lights and sirens activated, heading southbound on Central Avenue in Brooklyn, NY Officer Munoz testified at his deposition that the police vehicle "was working perfectly" prior to the accident and he was "about two blocks away" from the intersection of the accident when he first observed the light on Central Avenue to be green at the intersection of Troutman Street. The traffic control device continued to maintain a green signal as the police vehicle was approaching the intersection.
Defendant Vera testified at a deposition that he was traveling westbound, after pulling out of a parking space, on Troutman Street just before the intersection where traffic was "stuck because of the red light". Vera indicated that he was aware the traffic signal had malfunctioned numerous times prior to the date of the accident. At the time Vera had pulled out of the parking spot, he was behind about three or four cars at the red light when he heard an emergency vehicle with sirens approach from behind him. The vehicles facing the red light in front of him made it safely through the red light. At the time of impact with Munoz's police vehicle on Central Avenue, Vera was about 8 feet into the intersection with the emergency vehicle at least one car behind him. Vera stated that he did not see the police vehicle operated by the plaintiff coming from his left, on Troutman Street, prior to impact.
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Summary judgment is proper when there are no issues of triable fact ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324). Issue finding rather than issue determination is its function ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395).
The evidence will be construed in the light most favorable to the one moved against ( Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964]). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor ( GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial ( Kosson v. Algaze, 84 NY2d 1019). Bare conclusory allegations are insufficient to defeat a motion for summary judgment. ( Thanasoulis v. National Assn. for the Specialty Foods Trade, Inc., 226 AD2d 227 [1st Dept 1996]; Lee v. Weinstein, 116 AD2d 700 [2nd Dept], lv denied 68 NY2d 601).
In this case, the issue is whether the malfunctioning traffic light is the proximate cause of the plaintiffs injuries, the Court finds that although the City and Petrocelli have a duty to maintain a properly functioning traffic light, that the malfunction of the traffic light at the time of the accident was not the proximate cause of plaintiff's injuries.
To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him or her a duty of reasonable care, (2) there was a breach of that duty, and (3) a resulting injury proximately caused by the breach ( Boltax v. Joy Day Camp, 67 NY2d 617).
Vehicle and Traffic Law Section § 1117 states that;
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"Except when directed to proceed by a police officer, every operator of a motor vehicle approaching an intersection governed by a traffic-control signal which is out of service or otherwise malfunctioning shall stop in the manner required for stop signs set forth in section eleven hundred seventy-two of this title, and proceed according to the rules of right of way for vehicles set forth in article twenty-six of this title." (Emphasis added)
In Minemar v Kharova, City of New York, 29 AD3d 750 [2nd Dept.2006], the Appellate Division considered a similar fact pattern where the plaintiff had stopped at a red light, after waiting a few minutes at the intersection, the vehicles in front of him started to move through the red light, the plaintiff realizing the light was not changing to green and was malfunctioning, moved halfway into the intersection and was struck by another vehicle. The Court in Minemar stated:
"where the plaintiff driver was fully aware of the malfunctioning traffic light and the consequent need to exercise caution in proceeding through the intersection, any negligence on the part of the City in maintaining the traffic light was not the proximate cause of the accident."
The Court dismissed the action against the City and Petrocelli Electric who was the third-party defendant.
Plaintiff argues that defendant Vera may not have been "fully aware" that the light controlling the intersection at Central and Troutman was malfunctioning at the time of the accident, and argues that the Minimar holding should not apply. However, notwithstanding the defendant Vera's awareness of the malfunctioning traffic light, when defendant knows the light he is facing is a steady red, the Courts have held that the absence or malfunction of the control signal was not the proximate cause of the accident.
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( Applebee v State of New York, 308 NY 502, 158 AD2d 499[2nd Dept. 1990], Sherman v City of New York, 206 AD2d 272 [1st Dept. 1994], leave to appeal denied, 85 NY2nd 802, Rubinfeld V City of New York, 263 AD2d 448, [2nd Dept 1999], Minervino v City of New York, 49 AD2nd 750 [2nd Dept. 1975])., Plantikow v City of New York, 189 AD2nd 805 [2ndDept. 1993]. Defendant Vera's testimony and affidavit clearly state the light was red at the time he went through a red light. As such, the malfuncting signal was not the proximate cause of the accident
Addressing the argument raised by plaintiff that "but for" the malfunctioning traffic light defendant Vera would have cleared the intersection before the police vehicle moved into the intersection, the Court finds that this does not establish that the broken traffic light was the proximate cause of the accident, and does not create triable issues of fact. ( Bisceglia v Interntional Business Machines, 287 AD2d 674 [2nd Dept.2001], Hersman v Hadley, 235 AD2d 714 [3rd Dept 1997], Sosa v City of New York 281 AD2d 469 [ 2nd Dept 2001], Gonzalez V City of Yonkers, 277 AD2d 421 [2nd dept. 2000]).
In a case involving a similar fact pattern this "but for" analysis was rejected by the Appellate Division Second Department in Bisceglia v International Business Machines, 287 AD2d 674 [2nd Dept.2001] which held: While the Bisceglias (sic) contend that the accident would not have
happened if the traffic light had been operating properly, "this is precisely the type of 'but for' analysis that has been rejected as a basis for liability" (Hersman v Hadley, 235 AD2d 714, 718).
Furthermore, in this case there are no facts that establish that the driver Vera was confused by the malfunctioning traffic light, the facts as submitted to the Court establish that he was aware that the light had often malfunctioned, and that it was red for a long period of time, and that he knew it was red when he moved into the intersection.
Accordingly, the motions for summary judgment by The City and Petrocelli are granted.
The Clerk of the Court is directed to dismiss the complaint and all cross claims asserted against the City of New York, the New York City Department of Transportation and the Petrocelli Electric Company with prejudice. The third party complaint against Petrocelli Electric Company is also dismissed with prejudice.
The foregoing constitutes the decision and order of the Court.