Opinion
Index 16-621034
02-25-2020
MICHAEL D. STRACUZZA, Plaintiff, v. KLEET LUMBER CO., INC, and WILLIAM CARPENTER, as Executor of the Estate of JOHN H. BIESELIN, Deceased, Defendants. Cal No. 19-01621MV
SALENGER, SACK, KIMMEL & BAVARO, LLP Attorney for Plaintiff JACOBSON & SCHWARTZ Attorney for Defendants
Unpublished Opinion
MOTION DATE 12-5-19
ADJ. DATE 1-9-20
Mot. Seq. # 001 - MotD
SALENGER, SACK, KIMMEL & BAVARO, LLP Attorney for Plaintiff
JACOBSON & SCHWARTZ Attorney for Defendants
HON. GEORGE M. NOLAN J.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by plaintiff, on October 28.2019: Notice of Gross Motion and supporting papers; Answering Affidavits and supporting papers filed by defendants, on November 26.2019; Replying Affidavits and supporting papers filed by plaintiff, on December 31. 2019: Other.___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiff for partial summary judgment on the issue of liability and to dismiss defendants' affirmative defense of culpable conduct is granted in part and denied in part.
This action was commenced by plaintiff Michael D. Stracuzza to recover damages for injuries he allegedly sustained on May 27, 2016, when his motorcycle was struck by a vehicle owned by defendant Kleet Lumber Bo, Inc., and operated by John H. Bieselin, on Park Avenue, at or near its intersection with East 5th Street, in Huntington, New York. The accident allegedly occurred when Bieselin attempted to make a left turn from the northbound lanes of Park Avenue into a parking lot, and struck plaintiffs motorcycle. After the commencement of this proceeding, Bieselin passed away, and William Carpenter, as executor of his estate, was substituted as a defendant.
Plaintiff now moves for summary judgment on the issue of Bieselin's negligence, and to dismiss defendants' affirmative defense of culpable conduct. Plaintiff argues that Bieselin violated, inter alia, Vehicle and Traffic Law § 1141 by making a left turn into the path of plaintiff s motorcycle, which was traveling with the right-of-way. In support of the motion, plaintiff submits, inter alia, the transcript of his deposition along with the transcript of the deposition of William Carpenter. Defendants oppose the motion, arguing that triable issues of fact exist as to the happening of the accident and as to the comparative fault of plaintiff. Defendants submit, inter alia, the certified police accident file and the transcript of the deposition of plaintiff.
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 (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64N.Y.2d 851, S7N.Y.S.2d 316 [1985]). Themoving party has the initial burden of proving entitlement to summary judgment (id.). Once the moving party demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med Ctr., supra). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see New York City Asbestos Litig. v Chevron Corp., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Stonehill Capital Mgt. LLC v Bank of the West, 28 N.Y.3d 439, 45 N.Y.S.3d 864 [2016]).
A failure to comply with the Vehicle and Traffic Law constitutes negligence as a matter of law (see Kerolle v Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept 2019]; Marks v Rieckhoff 172 A.D.3d 847, 101 N.Y.S.3d 63[2d Dept 2019]; Kaziu v Human Care Servs. for Families & Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 [2d Dept 2018]). Pursuant to Vehicle and Traffic Law § 1141, a vehicle intending to turn left within an intersection 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 (see Ming-Fai Jon v Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86 N.Y.S.3d 562 [2d Dept 2018]; Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]). Thus, a driver who attempts to make a left turn when it not reasonably safe to do so is in violation of this provision of the Vehicle and Traffic Law (see 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]). Although the operator of a vehicle with the right-of-way is entitled to assume that other drivers will obey traffic laws requiring them to yield (see Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Jeong SookLee-Son v Doe, 170 A.D.3d 973, 96N.Y.S.3d302 [2d Dept 2019]; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]), the driver with the right-of-way also has a duty to keep a proper lookout to avoid collisions with other vehicles (see Matias v Bello, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]; Miron v Pappas, 161 A.D.3d 1063, 77 N.Y.S.3d 163 [2d Dept 2018]; Mark v New York City Tr. Auth., 150 A.D.3d 980, 55 N.Y.S.3d 128 [2d Dept 2017]). Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield the right-of-way is not comparatively negligent for failing to avoid the collision (see Jeong Sook Lee-Son v Doe, supra; Enrique v Joseph, supra; Rohn v Aly, 167 A.D.3d 1054, 91 N.Y.S.3d 256 [2d Dept 2018]). To establish prima facie entitlement to judgment as a matter of law on the issue of negligence, a plaintiff is no longer required to show freedom from comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102N.Y.S.3d713 [2d Dept 2019]; Heard v Schade, 172 A.D.3d 1335, 99 N.Y.S.3d 666 [2d Dept 2019]; Bloechle v Heritage Catering, Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Marks v Rieckhoff, supra).
Plaintiff has established his prima facie entitlement to summary judgment on the issue of liability by demonstrating that defendant was negligent, as he violated Vehicle and Traffic Law § 1141 (see Brodney v Picinic, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]; Ming-FaiJon v Wager, supra; Giannone v Urdahl, supra; Yu MeiLiu v Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept 2018]; Smith v Fuentes, 158 A.D.3d 731, 68 N.Y.S.3d 739 [2d Dept 2018]). Plaintiff testified that he was operating a motorcycle southbound on Park Avenue, approaching its intersection with East 5th Street. He testified that he was traveling at approximately 35 miles per hour. He testified that Bieselin's vehicle was traveling northbound on Park Avenue when he suddenly, and without warning, turned into plaintiffs path of travel. Plaintiff testified that he attempted to avoid the accident by counter steering, or leaning left, to go around Bieselin's vehicle.
Plaintiff having established prima facie entitlement to summary judgment, the burden now shifts to defendants to submit evidentiary proof in admissible form which raises a triable issue of fact (see Zuckerman v City of New York, supra; Yu MeiLiu v Weihong Liu, supra). In opposition, defendants fail to raise a triable issue of fact with respect to Bieselin's negligence (see Rodriguez y City of New York, supra; Bloechle v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra). Therefore, the branch of plaintiff s motion for summary judgment on the issue of liability is granted.
As to the branch of plaintiff s motion seeking to dismiss defendants' affirmative defense of comparative negligence, 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]).
While a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of New York, supra; Bloechle v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra; Marks v Rieckhoff, supra; Auguste v Jeter, supra), the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). Plaintiff has established, prima facie, entitlement to the relief requested. Plaintiff testified that he was traveling at the posted speed limit, and that he attempted evasive manuevers to avoid the collision (see Richardson v Cablevision Sys. Corp., supra; Matias v Bello, supra). However, defendants have raised a triable issue of fact with respect to plaintiffs comparative negligence. Defendants submit the certified police investigation file, which raises a, question with respect to plaintiffs speed at the time of the collision. Further, plaintiff testified that he I had made several lane changes in the moments leading up to the crash, which raise questions of fact that cannot be decided on a motion for summary judgment. As such, plaintiffs motion to dismiss defendants' first affirmative defense is denied.
Accordingly, the motion by plaintiff for partial summary judgment on the issue of liability is granted, and the motion by plaintiff to dismiss defendants' first affirmative defense of culpable conduct is denied.