Opinion
1387 CA 18–00884
03-15-2019
Maureen A. WEINERT–SALERNO, Plaintiff–Respondent, v. April L. STEFANSKI, Defendant–Respondent, Christopher E. Monaco, Defendant–Appellant, and Andrew J. David, Defendant.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT–APPELLANT. MARTYN AND MARTYN, MINEOLA (AMANDA L. RAIMONDI OF COUNSEL), FOR DEFENDANT–RESPONDENT. WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT–APPELLANT.
MARTYN AND MARTYN, MINEOLA (AMANDA L. RAIMONDI OF COUNSEL), FOR DEFENDANT–RESPONDENT.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she allegedly sustained when the vehicle she was operating was involved in a series of collisions with three other vehicles that were operated by defendants. Contrary to the contention of defendant Christopher E. Monaco, Supreme Court properly granted the motion of defendant April L. Stefanski seeking summary judgment dismissing the complaint and any cross claims and counterclaims against her.
We conclude that Stefanski established that she was not responsible for any of the collisions, and thus that she was entitled to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). In support of her motion, Stefanski submitted evidence that she was operating the lead vehicle, had activated her right turn signal and moved to the right-hand shoulder of the road, and had slowed her vehicle to 3 to 5 miles per hour in order to make a right-hand turn into her driveway. At that point, her vehicle was struck by plaintiff's vehicle.
In opposition to the motion, Monaco submitted deposition testimony from himself, plaintiff and Stefanski, but we conclude that those submissions failed to raise any triable issue of fact concerning Stefanski's alleged negligence (see Ruzycki v. Baker, 301 A.D.2d 48, 50, 750 N.Y.S.2d 680 [4th Dept. 2002] ; Mascitti v. Greene, 250 A.D.2d 821, 822, 673 N.Y.S.2d 206 [2d Dept. 1998] ; see also Verdejo v. Aguirre, 8 A.D.3d 63, 63–64, 777 N.Y.S.2d 648 [1st Dept. 2004] ). This is not a case where the lead vehicle, i.e., Stefanski's vehicle, stopped or slowed down suddenly (cf. Macri v. Kotrys, 164 A.D.3d 1642, 1643, 84 N.Y.S.3d 293 [4th Dept. 2018] ; James v. Thomas, 156 A.D.3d 1440, 1441, 67 N.Y.S.3d 735 [4th Dept. 2017] ; Brooks v. High St. Professional Bldg., Inc., 34 A.D.3d 1265, 1266–1267, 825 N.Y.S.2d 330 [4th Dept. 2006] ). Instead, the submissions from all parties establish that Stefanski had activated her right turn signal and had slowed or stopped in anticipation of turning into the driveway. Plaintiff even conceded during her deposition testimony that she observed Stefanki's vehicle slowing from a distance of six car lengths.
Although there may be some unresolved questions concerning the weather and road conditions at the time that plaintiff's vehicle struck the rear end of Stefanski's vehicle, we reject Monaco's contention that such questions preclude an award of summary judgment to Stefanski. Indeed, it was plaintiff's duty to take heed of such conditions and account for them in how she reacted to seeing Stefanski activate her right turn signal and slow or stop in preparation for turning (see LaMasa v. Bachman, 56 A.D.3d 340, 340, 869 N.Y.S.2d 17 [1st Dept. 2008] ; Montes v. New York City Tr. Auth., 46 A.D.3d 121, 125, 843 N.Y.S.2d 622 [1st Dept. 2007] ; see also Rodriguez v. City of New York, 161 A.D.3d 575, 577, 77 N.Y.S.3d 46 [1st Dept. 2018] ; Mitchell v. Gonzalez, 269 A.D.2d 250, 251, 703 N.Y.S.2d 124 [1st Dept. 2000] ).Monaco further contends that Stefanski is not entitled to summary judgment because, during her deposition, plaintiff testified that Stefanski's vehicle was positioned at a 90–degree angle to plaintiff's vehicle when the two vehicles collided. The photographic evidence submitted in support of and in opposition to the motion, however, establish that plaintiff's testimony to that effect is incredible as a matter of law (see generally Lewis v. Carrols LLC, 158 A.D.3d 1055, 1056–1057, 70 N.Y.S.3d 319 [4th Dept. 2018] ; Zapata v. Buitriago, 107 A.D.3d 977, 979, 969 N.Y.S.2d 79 [2d Dept. 2013] ). The damage to Stefanski's vehicle was to the left quarter panel and rear bumper, i.e., the rear of the driver's side. Had Stefanski's vehicle been at a 90–degree angle to the road and entering her driveway on the right at the time of the collision, as plaintiff testified, the damage to Stefanski's vehicle would have been on the passenger side, not the rear driver's side. Finally, we reject Monaco's contention that the unresolved sequence in which the collisions occurred, i.e., whether plaintiff's vehicle collided with Stefanski's vehicle before or after Monaco's vehicle collided with plaintiff's vehicle, precludes an award of summary judgment to Stefanski. Whatever the sequence, the record establishes that Stefanski's actions had no part in determining it.