Opinion
# 2019-054-015 Claim No. 129701 Motion No. M-93503
05-21-2019
RENEE NESHEIWAT v. THE STATE OF NEW YORK
STENGER, ROBERTS, DAVIS & DIAMOND, LLP By: Thomas R. Davis, Esq. HON. LETITIA JAMES Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General
Synopsis
Summary judgment awarded to claimant in motor vehicle accident-negligence per violation of Vehicle and Traffic Law.
Case information
| UID: | 2019-054-015 |
| Claimant(s): | RENEE NESHEIWAT |
| Claimant short name: | NESHEIWAT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has, sua sponte, amended the caption to reflect the only proper party defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129701 |
| Motion number(s): | M-93503 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | STENGER, ROBERTS, DAVIS & DIAMOND, LLP By: Thomas R. Davis, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 21, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on claimant's motion for summary judgment on the issue of liability:
Notice of Motion, Supporting Affirmation and Exhibits...........................................1
Attorney's Affirmation in Opposition......................................................................2
Reply Affirmation and Exhibit..................................................................................3
Claimant seeks summary judgment on the issue of liability arising out of a motor vehicle accident that occurred on March 9, 2017 at approximately 4:45 p.m. on State Route 55 in the Town of LaGrange in Dutchess County. At the accident location, State Route 55 has one eastbound lane and one westbound lane, along with a westbound left-turn lane. The eastbound and westbound lanes are separated by a double-yellow line. The accident occurred when claimant, who was driving a motor vehicle westbound on Route 55, struck a New York State trooper patrol car driven by New York State Trooper Christopher Calabrese who was proceeding eastbound on Route 55 and had crossed over the double-yellow line to check for oncoming traffic before attempting to make a left turn. Claimant contends that the trooper was negligent in failing to yield to her right-of-way. Defendant opposes the motion and does not raise any issues regarding any comparative fault by claimant.
The undisputed facts as established by claimant's affidavit, claimant's testimony at her examination before trial and the examination before trial testimony of the trooper are as follows.
New York State Trooper Christopher Calabrese was driving his patrol car in the course of his employment; however he was not engaged in an emergency operation of his vehicle (Claimant's Motion, Ex. E, p 15). Rather, he was repositioning his vehicle to observe traffic (id. at 13). The trooper was proceeding eastbound on Route 55 just prior to the intersection with Titusville Road, while claimant was proceeding westbound on Route 55. The rear deck lights of the trooper car were activated (id. at 15). The traffic was backed up in the eastbound lane and several motorists allowed the trooper to pass them.
The trooper proceeded toward the front of the line of vehicles in the eastbound lane. He then stopped and signaled to turn left (id. at 19). A driver of a large pickup truck waved the trooper in front of the pickup truck. The trooper interpreted the driver's wave as "signalling [sic] that the traffic had cleared" (id.). The trooper could not see beyond the pickup truck because the pickup truck was taller than the trooper car. The trooper's left-turn signal was activated and the trooper pulled in front of the pickup truck where the trooper stopped to see if he could see any oncoming westbound traffic (id. at 18). The front of the trooper's vehicle had crossed the double yellow line between the eastbound and westbound lanes and into the westbound-turning lane with the "nose" of the trooper car extending into the westbound-driving lane (id. at 21-23). The trooper testified at his examination before trial as follows: "so I went as far as I could see the oncoming traffic . . . traveling westbound on 55 approaching me . . . I observed a vehicle approaching me, so I stopped my car, and then I was subsequently struck by that vehicle" (id. at 19-20). When asked at his examination before trial, "[w]hat was your purpose for stopping in the road?" The trooper responded, "[t]o see the traffic that was approaching before I entered the lane" (id. at 23). The following ensued at the trooper's examination before trial:
Q. Did you, in fact, see any traffic approaching?
A. Yes.
Q. And what occurred while you were stopped looking for traffic?
A. I pulled forward, stopped and immediately saw [claimant's] car approaching, and then I was struck"
(id.). The trooper conceded that claimant had the right-of-way (id. at 24).
Prior to impact, claimant was proceeding westbound on Route 55 with a green light at the intersection. The posted speed limit was 45 mph and claimant was proceeding at a speed of 40 mph (Claimant's Ex. D, p 10). Claimant "suddenly saw a state police car pull into [her] lane of travel and stop" (Claimant's Affidavit, ¶ 3). When claimant first saw the patrol car, it was at a distance of "approximately 1 ½ to 2 car lengths" and she "had no time to react before impact" (id at 3, 10; Claimant's Ex. D, p 11). Claimant "slammed" on her brakes and "braced for the impact" because "there was nowhere to go" to avoid the collision (Claimant's Affidavit, ¶ 6; Claimant's Ex. D, p 12).
Claimant argues that the trooper's conduct of entering the westbound lane of traffic in front of the pickup truck, without being able to see claimant's westbound vehicle approaching with the right-of-way, was negligent. Additionally, claimant argues that the trooper's negligent conduct superceded the wave by the pickup truck driver and was the proximate cause of the accident.
Defendant opposes the motion and argues that there are issues of fact as to whether the trooper could independently see if it was safe to proceed without relying upon the pickup truck driver's wave. Defendant also argues that the trooper was not negligent.
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Summary judgment is "rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances" (Johannsdottir v Kohn, 90 AD2d 842 [2d Dept 1982]). Here, however, the trooper violated Vehicle and Traffic Law § 1141 Vehicle turning left, which provides that:
"[t]he driver of the vehicle intending to turn to the left in an intersection or into an alley, private road or driveway, shall 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."
A violation of Vehicle and Traffic Law § 1141 constitutes negligence per se (see Vainer v DiSalvo, 79 AD3d 1023, 1024 [2d Dept 2010] ["(a) violation of the Vehicle and Traffic Law constitutes negligence as a matter of law"]).
The undisputed facts also established that claimant was not negligent. Claimant was proceeding westbound on Route 55 within the speed limit and with the right-of-way. Claimant "suddenly saw a state police car pull into [her] lane of travel and stop" (Claimant's Affidavit, ¶ 3). The trooper's car was at a distance of "approximately 1 ½ to 2 car lengths" and claimant "had no time to react before impact" (id at 3, 10; Claimant's Ex. D, p 11). Such facts do not show any comparative fault by claimant and defendant does not raise any issue regarding any comparative fault attributable to claimant (see Jeong Sook Lee-Son v Doe, 170 AD3d 973 [2d Dept 2019] [no comparable fault demonstrated where driver with right-of-way could not avoid colliding with vehicle that had turned into oncoming path of the vehicle with the right-of-way]; Simeone v Cianciolo, 118 AD3d 864 [2d Dept 2014] [no issue of fact as to comparative fault where vehicle had right-of-way and was entitled to anticipate that offending vehicle would obey Vehicle and Traffic Law § 1141 by yielding to oncoming traffic]). Indeed, claimant was entitled to anticipate that the trooper would obey the traffic law which, pursuant to Vehicle and Traffic Law § 1141 required the trooper to yield to claimant, who had the right-of-way (see Hyo Jin Yoon v Guang Chen, 127 AD3d 1023, 1024 [2d Dept 2015] ["driver violates Vehicle and Traffic Law § 1141 by turning left into path of other vehicle and this violation was the sole proximate cause of the accident," as other driver had the right-of-way and was "entitled to anticipate that the (offending) driver would obey traffic laws which required (him) to yield"]).
Accordingly, the Court finds that claimant has met her burden of establishing that the trooper's conduct was negligent as a matter of law and that such negligence was the sole proximate cause of the accident (Hyo Jin Yoon, 127 AD3d at 1024).
The Court rejects defendant's argument that there is an issue of fact as to the degree of the trooper's reliance upon the pickup truck driver's wave. The trooper's own examination before trial testimony establishes that the trooper did not rely upon the driver's wave. In fact, the trooper testified that he did not proceed into the turn without reservation and in reliance upon the wave; rather he stopped to "see the oncoming traffic" (Defendant's Ex. E, p 19). Accordingly, defendant's reliance upon the cases cited in support of its opposition to claimant's motion is misplaced.
In sum, the Court finds that the trooper's negligence was the sole proximate cause of the accident and that, therefore, defendant is 100 percent liable for the accident.
Accordingly, claimant's motion for summary judgement on the issue of liability is GRANTED.
A trial on the issue of damages shall be held as soon as practicable.
May 21, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims