Opinion
2019–01702 Index No. 600529/17
03-18-2020
Christopher PITTMAN, Plaintiff-Respondent, v. Ashley BALL, et al., Defendants-Respondents, Plainedge Union Free School District, Appellant, et al., Defendant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant. Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, N.Y. (Michael E. Bergman, Julie T. Mark, and Amit Sondhi of counsel), for plaintiff-respondent. Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for defendants—respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, N.Y. (Michael E. Bergman, Julie T. Mark, and Amit Sondhi of counsel), for plaintiff-respondent.
Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for defendants—respondents.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff commenced this action against the defendants to recover damages for personal injuries he alleges he sustained when the vehicle he was driving was hit by another vehicle at or near the intersection of Stewart Avenue and Balfour Drive in Nassau County. The other vehicle was operated by the defendant Ashley Ball (hereinafter the defendant driver) and owned by the defendant Shaun Mallon. The defendant Plainedge Union Free School District (hereinafter the School District) employed a school bus driver who was operating a school bus owned by the School District that was stopped at or near the intersection at the time of the collision. According to the plaintiff, the bus driver was a proximate cause of the collision.
The School District moved for summary judgment dismissing the complaint insofar as asserted against it, submitting in support, inter alia, the deposition testimony of the plaintiff. At his deposition, the plaintiff testified that on May 17, 2016, between 2:30 and 3:00 p.m., he was operating his employer's vehicle when it was struck by the vehicle operated by the defendant driver. The plaintiff testified that immediately before the accident, his vehicle, which was traveling north on Stewart Avenue, was stopped at the intersection of Stewart Avenue and Balfour Drive, waiting to make a left turn onto Balfour Drive. At that intersection, Stewart Avenue is a four-lane thoroughfare with two northbound lanes and two southbound lanes separated by a double-yellow line. According to the plaintiff, the School District's school bus was traveling south on Stewart Avenue, but had stopped opposite from his vehicle at or near the intersection and was waiting to cross the northbound lanes to turn left into a middle school parking lot.
The plaintiff testified that the school bus, which was facing his vehicle, was in the southbound lane closest to his vehicle, and that the bus driver gestured to the plaintiff to make his turn. The plaintiff further testified that he could not see past the school bus to determine if the other southbound lane was clear of traffic and that since he observed the bus driver look in his left rearview mirror before gesturing to the plaintiff to proceed, the plaintiff believed that it was safe for him to make his turn and then did so. According to the plaintiff, he had just begun to make his turn, traveling less than five miles per hour, when his vehicle was struck by the vehicle driven by the defendant driver. The plaintiff testified that the speed of that vehicle, which had been traveling straight in the other southbound lane of Stewart Avenue past the school bus, was approximately 55 miles per hour. The School District also submitted the deposition testimony of the defendant driver, who testified, inter alia, that she was operating Mallon's vehicle at approximately 25 miles per hour at the time of the collision.
We agree with the Supreme Court's determination denying the School District's motion for summary judgment dismissing the complaint insofar as asserted against it. "When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances" ( Dolce v. Cucolo , 106 A.D.3d 1431, 1431, 966 N.Y.S.2d 581 ; see Kievman v. Philip , 84 A.D.3d 1031, 1031, 924 N.Y.S.2d 112 ). Here, the School District failed to establish, prima facie, that the plaintiff did not rely on the bus driver's gesture that it was safe for the plaintiff to make his left turn (see Shapiro v. Mangio , 259 A.D.2d 692, 692–693, 686 N.Y.S.2d 846 ; see also Kievman v. Philip , 84 A.D.3d at 1033, 924 N.Y.S.2d 112 ). The School District also failed to establish, prima facie, that the defendant driver's alleged negligent conduct in operating Mallon's vehicle constituted an intervening and superseding act which broke the causal nexus between the bus driver's alleged negligence and the plaintiff's injuries (see Searless v. Karczewski , 153 A.D.3d 957, 958, 60 N.Y.S.3d 431 ; see also Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).
Since the School District failed to establish, prima facie, its entitlement to judgment as a matter of law, we agree with the Supreme Court's determination denying its motion for summary judgment dismissing the complaint insofar as asserted against it without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
MASTRO, J.P., DUFFY, BARROS and BRATHWAITE NELSON, JJ., concur.