|Simmons v Canady|
|2011 NY Slip Op 51020(U) [31 Misc 3d 1237(A)]|
|Decided on May 18, 2011|
|Supreme Court, Queens County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Margaret Simmons, Plaintiff,
Reginald F. Canady, JR., BRYAN A. HALL and KENNETH P. CONROY, Defendants.
The following papers numbered 1 to 17 were read on this motion by plaintiff MARGARET SIMMONS, for an order pursuant to CPLR 3212 granting partial summary judgment in favor of the plaintiff and against defendants BRYAN A. HALL and KENNETH P. CONROY on the issue of liability and the cross-motion by defendant REGINALD F. CANADY for an order granting summary judgment dismissing the plaintiff's complaint and any cross-claims filed against him:
Plaintiff's Notice of Motion-Affidavits-Exhibits........1 - 5
Defendant Canady's Cross-Motion.........................6 - 8
Def. Hall's Aff. in Opposition to Plaintiff's Motion....9 - 11
Def. Hall's Affirmation in Opposition to Cross-Motion..12 - 13
Plaintiff's Reply......................................14 - 15
Defendant Canady's Reply...............................16 - 17
This is a personal injury action in which plaintiff, [*2]MARGARET SIMMONS, seeks to recover damages for injuries she sustained as a result of a motor vehicle accident that occurred on October 12, 2009, at approximately 9:30 a.m. at the intersection of Farmers Boulevard and Rockaway Boulevard, Queens County, New York.
At the time of the accident, the vehicle owned and operated by defendant Reginald F. Canady was proceeding westbound on Rockaway Boulevard. The plaintiff, Ms. Simmons, was a front seat passenger in the Canady vehicle. The tractor trailer being operated by Bryan Hall and owned by defendant Kenneth P. Conroy was proceeding eastbound on Rockaway Boulevard when the driver, Bryan A. Hall, attempted to make a left turn onto Farmers Boulevard. As the defendant's vehicle was turning left and was proceeding onto Farmers Boulevard it collided with the Canady vehicle which was proceeding straight in a westbound direction on Rockaway Boulevard. Mr. Hall made the left turn in violation of a traffic sign which prohibited left turns at that intersection. He was given a summons at the scene for failure to obey the no left turn sign. Plaintiff contends that the accident occurred as Canady was proceeding with the green light in his favor and with the right of way on Rockaway Boulevard when the Hall vehicle failed to yield the right of way and made an illegal left turn in front of the Canady vehicle. The plaintiff contends that as a result of the accident she sustained serious physical injuries.
Plaintiff commenced an action against Mr. Canady the driver of the vehicle in which she was a passenger and against the owner and operator of the Hall vehicle by filing a summons and complaint on August 27, 2010. A summons and amended verified complaint was filed on September 20, 2010. Issue was joined by service of defendant Hall and Conroy's verified answer with cross-claim dated October 6, 2010, and by service of Canady's answer dated October 21, 2010.
Naomi J. Sakura, Esq., counsel for the plaintiff now moves for an order pursuant to CPLR 3212(b) granting partial summary judgment on the issue of liability against defendants Hall and Conroy. In support of the motion for summary judgment, counsel submits her own affidavit, a copy of the pleadings, the affidavit of the plaintiff Margaret Simmons, photographs of the intersection in question, a copy of the police accident report (MV-104), and a copy of the summons issued to defendant Hall at the scene.
In her affidavit dated November 19, 2010, Ms. Simmons states,
"On October 12, 2009, I was a passenger in the vehicle owned and driven by Reginald Canady when it was involved in a car accident. The accident happened on Rockaway Boulevard at its intersection with Farmers Boulevard in Queens, New York. As the vehicle I was in was going straight on Rockaway Boulevard, it was [*3]suddenly and unexpectedly struck on the front end and front driver's side by the tractor trailer that I later learned was owned by Kenneth P. Conroy and driven by Bryan A. Hall.
The photographs attached to this affidavit fairly and accurately depict both the damage that was caused on October 12, 2009 to the car I was a passenger in when it was struck by the tractor trailer and the intersection of Rockaway Boulevard at its intersection with Farmers Boulevard as it existed on October 12, 2009, namely the sign which prohibits left turns and U-turns. I sustained serious personal injuries as a result of this accident, including injuries to my back, neck, and right leg. As a result of the injuries, I had to undergo lumbar laminectomy, facetectomy and foraminotomy surgery."
The police report is based upon the statements from both drivers and states:
"At t/p/o, driver of vehicle No.1 [Hall] states that he was making a left turn from Rockaway Boulevard heading eastbound to Farmers Boulevard heading northbound when the collision occurred. Driver of Vehicle #1 [Hall] states that he did not see the sign prohibiting him from making the left turn. Driver of Vehicle #1 was given a summons for failure to obey the no left turn sign. At t/p/o driver of vehicle #2 [Canady] states that he was heading westbound on Rockaway Boulevard when Vehicle #1 collided with his vehicle. Officer did not observe the accident."
In addition, the plaintiff submits a copy of the summons issued to Mr. Conroy by the officer at the scene for disobeying the no left turn sign. The back of the summons indicates the Mr. Conroy pled guilty to the traffic violation on October 28, 2009.
Plaintiff's counsel contends that the actions of Mr. Conroy in attempting to make a left turn onto Farmers Boulevard from Rockaway Boulevard in violation of the traffic control sign which prohibits left turns from Rockaway Boulevard onto Farmers Boulevard constitutes negligence as a matter of law and was the sole proximate cause of the accident. Counsel contends that the actions of the defendant in making the illegal left turn, which he admitted to the police officer on the scene, and for which he pled guilty, violated VTL § 1110(a) which requires all drivers to obey the instructions of any applicable official traffic control device. Moreover, counsel contends that plaintiff had the right to assume that the defendant's vehicle would not disobey the traffic rules.
Counsel Peter Maiorino, Esq., on behalf of defendant Canady cross-moves for an order granting summary judgment and dismissing [*4]the plaintiff's complaint and all cross-claims filed by the co-defendants. Counsel states that he adopts the facts, pleadings, legal arguments and exhibits set forth in the affirmation of Naomi J. Skura, Esq. and states that for the reasons enumerated therein summary judgment should be granted in favor of Canady and against Hall and Conroy.
Counsel for Hall and Conroy, Shawn P. O'Shaughnessy, Esq., submits an affirmation in opposition to the motion and cross-motion. He contends that summary judgment is not warranted because there are conflicting versions of how the accident occurred and questions regarding the comparative negligence of the plaintiff. Counsel also contends the motion for summary judgment is premature as depositions have not yet been held. Counsel submits the affidavit of Bryan A. Hall dated April 20, 2011, which states:
"I was driving a tractor trailer eastbound on Rockaway Boulevard at its intersection with Farmers Boulevard. I stopped for a red light at this intersection. When the light turned green, I proceeded to make a left hand turn onto northbound Farmer's Boulevard. My vehicle was almost completely out of the intersection when I noticed the above mentioned Nissan vehicle proceeding westbound on Rockaway Boulevard. The Nissan vehicle was traveling at a high rate of speed which I would approximate at about 80 miles per hour. The vehicle was proceeding on the south side of the westbound Rockaway Boulevard at first but then began to move to the north side of the road towards the rear of my trailer. The Nissan vehicle then made contact with the right rear of my trailer near the rear tire. My vehicle was only proceeding at about 5 miles per hour at the time that I was turning. My vehicle was almost completely out of the intersection at the time of the accident except for the very rear of the trailer. It is respectfully submitted that the accident was caused by the excessive speed of the Nissan vehicle and the reckless operation of that vehicle by its operator."
Counsel contends that the affidavit of Mr. Hall raises a material issue of fact regarding the comparative negligence of the Canady vehicle. Counsel contends that Hall's affidavit alleging reckless driving and excessive speed of the Canady vehicle and Canady's failure to see that which he should have seen through the proper use of his senses raises a question of fact as to whether Canady's actions were a proximate cause of the accident.
The plaintiff has not opposed Canady's cross-motion to dismiss the complaint against him.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the [*5]burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557).
Upon review of the motion by the plaintiff, defendant Canady's cross-motion, defendant Hall's opposition and the plaintiff's reply thereto, this court finds as follows:
It is not disputed that the defendant made a left turn across Rockaway Boulevard onto Farmers Boulevard. Further, it is not disputed that there was a sign at the intersection which prohibited the making of left turns onto Farmers Boulevard from Rockaway Boulevard. Additionally, the evidence submitted indicates that Hall received a summons at the scene for failing to obey the no left turn sign. It is also not disputed that the defendant pled guilty to violating Vehicle and Traffic Law § 1160(d).
Vehicle and Traffic Law § 1160(d) states:
d) When markers, buttons, signs, or other markings are placed within or adjacent to intersections and thereby require and direct that a different course from that specified in this section be traveled by vehicles turning at an intersection, no driver of a vehicle shall turn a vehicle at an intersection other than as directed and required by such markers, buttons, signs, or other markings.
Vehicle and Traffic Law § 1110(a) states;
Obedience to and Required Traffic-control Devices
(a) Every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this title.
Further, Vehicle and Traffic Law § 1141 requires that
"[t]he driver of a vehicle intending to turn to the left within an intersection . . . 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 driver with the right of way is entitled to anticipate that the other driver will obey traffic laws that require him to yield (see Kann v Maggies Paratransit Corp., 63 AD3d 792[2d Dept. 2009]; Palomo v Pozzi, 57 AD3d 498 [2d Dept. 2009]; Berner v Koegel, 31 AD3d 591[2d Dept. 2006]; Gabler v Marley Bldg. Supply Corp., 27 AD3d 519[2d Dept. 2006]). Further, a driver is negligent when an accident occurs because the driver failed to [*6]see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese, 35 AD3d 672 [2d Dept. 2006]; Berner v Koegel, 31 AD3d at 592[2d Dept. 2006]; Bongiovi v Hoffman, 18 AD3d 686 [2d Dept. 2005]).
It is plaintiff's contention that the defendant Hall was negligent as a matter of law in attempting to make a left turn onto Farmers Boulevard in violation of VTL §§ 1141, 1160(d) and 1110(a) in that he admittedly made a left turn where such turn was prohibited by a clearly marked traffic sign and that said negligence was the sole proximate cause of the accident. This Court agrees.
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her affidavit as well as the police report and the summons indicating that Hall admittedly made a left turn at an intersection which had a clearly marked traffic sign prohibiting left turns at the intersection and that the left turn was a proximate cause of the accident (see Vainer v DiSalvo,79 AD3d 1023[2d Dept. 2010]; Blangiardo v Hirsch, 29 AD3d 841 [2d Dept. 2006]; Gomez v. Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]). Further, since Mr. Hall made a left turn into the path of the Canady vehicle without yielding the right of way as Canady proceeded lawfully through the intersection he was negligent as a matter of law (see Heath v Liberato, 2011 NY Slip Op 1803 [2d Dept. 2011]; Kucar v Town of Huntington, 81 AD3d 784 [2d Dept. 2011]; Loch v Garber, 69 AD3d 814 [2d Dept. 2010]; Gabler v Marly Bldg. Supply Corp., 27 AD3d at 520 [2d Dept. 2006]; Bolta v Lohan, 242 AD2d 356 [2d Dept. 1997]). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v DiSalv, supra). The Canady vehicle, which had the right-of-way, was entitled to anticipate that the defendant would obey the traffic law which prohibited left turns at the intersection, and therefore his violation of Vehicle and Traffic Law was prima facie evidence that Hall's actions were the sole proximate cause of the accident (see Torro v Schiller, 8 AD3d 364 [2d Dept. 2004]). Thus, the plaintiff established, prima facie, her entitlement to judgment as a matter of law as the evidence demonstrated that Hall was negligent in disobeying the no left turn sign and in crossing in front of the Hall vehicle when it was hazardous to do so (see Salce v Check, 23 AD3d 451 [2d Dept. 2005]).
Further, the affidavit submitted in support of her motion demonstrated that the subject motor vehicle accident was not proximately caused by any negligence on the part of Canady (see Alvarez v Prospect Hosp., 68 NY2d 320 ).
In opposition to the plaintiffs' prima facie showing, defendant Hall failed to raise any material questions of fact as to whether the plaintiff was comparatively negligent (see [*7]Zuckerman v City of New York, 49 NY2d 557, 562 ; see Moreno v Gomez, 58 AD3d 611, 612 [2d Dept. 2009]; Moreback v Mesquita,17 AD3d 420, 421 [2d Dept. 2005]). Although a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection (see Demant v Rochevet, 43 AD3d 981 [2d Dept. 2007]), the defendant's affidavit stating that Canady was driving recklessly at 80 miles per hour while going through the intersection was speculative at best and not supported by competent evidence in the record. Hall's conclusory testimony was insufficient to raise a question of fact as to whether Canady's speed may have been a factor in the happening of the accident (see Kucar v Town of Huntington, 81 AD3d 784 [2d Dept. 2011]; Loch v Garber, supra.; Mateiasevici v Daccordo, 34 AD3d 651 [2d Dept. 2006]; Berner v Koegel, 31 AD3d 591 [2d Dept. 2006]; Maloney v. Niewender, 27 AD3d 426 [2d Dept. 2006]). Thus, the defendant failed to raise a triable issue of fact, proffering only speculative assertions that the Canady vehicle may have been comparatively negligent which are unsupported by the record (see Pitt v. Alpert, 51 AD3d 650 [2d Dept. 2008]; Gorelik v Laidlaw Tr. Inc., 50 AD3d 7389 [2d Dept. 2007]; Ishak v Guzman, 12 AD3d 409 [2d Dept. 2004]).
The defendants' contention that plaintiff's motion and Canady's cross-motion for summary judgment is premature is without merit. The defendants failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Hanover Ins. Co. v Prakin,81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978 [2d Dept. 2010]).
The cross-motion by defendant Canady for summary judgment dismissing the complaint and all cross-claims against him is granted as the Hall vehicle was negligent as a matter of law and there is no evidence in the record that supports a finding of comparative negligence of the Canady vehicle.
Accordingly, based upon the foregoing it is herebyORDERED that the plaintiff's motion is granted, and the plaintiff Margaret Simmons shall have summary judgment on the issue of liability as against the defendants Hall and Conroy and the Clerk of Court is authorized to enter judgment accordingly; and it is further,
ORDERED that the cross-motion by defendant Canady for summary judgment dismissing the complaint and all counterclaims against him is granted and it is further,
ORDERED that a copy of this order with notice of entry be served on the Clerk of the Trial Term Office and that upon [*8]compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for an assessment of damages.
Dated : Long Island City, NY
May 18, 2011
ROBERT J. MCDONALD