Opinion
Index Nos. 16-607479 18-00887MV 001 - MG
06-21-2019
TODD H. YAHNEY, Plaintiff, v. NORMAN STERN, CLAUDIA STERN and JORDAN J. STERN, Defendants.
SAKKAS, CAHN &WEISS, LLP Attorney for Plaintiff ZAKLUKIEWICZ, PUZO &MORRISSEY, LLP Attorney for Defendants
Unpublished Opinion
MOTION DATE 10-31-18
ADJ. DATE 12-6-18
SAKKAS, CAHN &WEISS, LLP Attorney for Plaintiff
ZAKLUKIEWICZ, PUZO &MORRISSEY, LLP Attorney for Defendants
HON. JOSEPH A. SANTORELLI JUSTICE
Upon the following papers numbered 1 to 23 read on this motion for summary judgment: Notice of Motion/ Order' to Show Cause and supporting papers 1-16; Notice of Cross Motion and supporting papers ____; Answering Affidavits and supporting papers 17-21; Replying Affidavits and supporting papers 22-23; Other___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiff Todd Yahney seeking summary judgment in his favor on the issue of negligence is granted.
Plaintiff Todd Yahney commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Long Island Expressway North Service Road and Round Swamp Road in the Town of Huntington on January 12, 2015. Plaintiff, by his complaint, alleges that the vehicle owned by defendants Norman Stem and Claudia Stem and operated by defendant Jordan Stem collided with the front of his vehicle after it entered the intersection against a red traffic light. At the time of the accident, plaintiffs vehicle was traveling westbound on Long Island Expressway North Service Road ("North Service Road") and defendants' vehicle was traveling southbound on Round Swamp Road.
Plaintiff now moves for summary judgment in his favor on the issue of negligence on the basis that Jordan Stem's operation of the Stem vehicle was the sole proximate cause of the subject accident. Specifically, plaintiff alleges that Jordan Stem's failure to yield the right of way to his vehicle and entering the intersection against the red light controlling his direction of traffic was the sole cause of the accident. In support of the motion, plaintiff submits copies of the pleadings, the parties' deposition transcripts, his own affidavit, an uncertified copy of the police accident report, and photographs of the parties' vehicles following the subject accident. Defendants oppose the motion on the grounds that there are triable issues of material fact as to how the subject accident occurred, and as to whether plaintiff is at fault for the subject accident's occurrence. In opposition to the motion, defendants submit copies of the photographs of the parties' vehicles after the accident, and an uncertified transcript of a recorded statement by plaintiff.
A court's task on a motion for summary judgment is issue finding rather than issue determination (see Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]), and it must view the evidence in the light most favorable to the party opposing the motion (see Boyce v Vazquez, 249 A.D.2d 724, 671 N.Y.S.2d 815 [3d Dept 1998]). Therefore, in determining a motion for summary judgment, the facts alleged by the nonmoving party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]). In the first instance, the moving party bears the burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 324, 76 N.Y.S.3d 898 [2018]). Once such showing has been made, the burden shifts to the nonmoving party to demonstrate the existence of material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Perez v Grace Episcopal Church, 6 A.D.3d 596, 774 N.Y.S.2d 785 [2d Dept 2004]).
A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Colpan v Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 949 N.Y.S.2d 124 [2d Dept 2012]; Vainer v DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236 [2d Dept 2010]; Klein v Crespo, 50 A.D.3d 745, 855 N.Y.S.2d 633 [2d Dept 2008], Iv denied 12 N.Y.3d 704, 876 N.Y.S.2d 705 [2009]). The conduct of motorists at a traffic signal is governed by Vehicle and Traffic Law § 1111, and not the more general provisions of the Vehicle and Traffic Law, such as those set forth in §§ 1140 or 1141, which govern the conduct of drivers at intersections that are not controlled by traffic lights (see Dicke v Anci, 31 A.D.3d 696, 821 N.Y.S.2d 93 [2d Dept 2006]; Saggio v Ladone, 21 A.D.3d 407,799 N.Y.S.2d 586 [2d Dept 2005]; Rudolph v Kahn, 4 A.D.3d 408, 771 N.Y.S.2d 370 [2d Dept 2004]). Section 1111 of the Vehicle and Traffic Law allows a driver approaching an intersection with a green traffic signal to proceed through the intersection, provided he or she yields the right of way to vehicles lawfully within the intersection, and exercise reasonable care under the circumstances to avoid a collision (see Tapia v Royal Tours Serv., Inc., 67 A.D.3d 894, 889 N.Y.S.2d 225 [2d Dept 2009]; Schiskie v Fernan, 277 A.D.2d 441, 716 N.Y.S.2d [2d Dept 2000]; Siegel v Sweeney, 266 A.D.2d 200, 697 N.Y.S.2d 317 [1999]; see generally Shea v Judson, 283 NY 393, 28 N.E.2d 885 [1940]). A motorist facing a steady green light has the right to assume that the light is red for cross traffic and that such traffic will obey the law by stopping for the red light and remaining stationary until the light has changed to green (see Baughman v Libasci, 30 A.D.2d 696, 292 N.Y.S.2d 588 [2d Dept 1968]). However, a driver proceeding under a green light is not permitted to blindly and wantonly enter an intersection without keeping a proper lookout or employing a reasonable speed (see Nuziale v Paper Transp. of Green Bay Inc., 39 A.D.3d 833, 835 N.Y.S.2d 316 [2d Dept 2007]).
Plaintiff testified at an examination before trial that prior to the accident he was traveling, at approximately 40 miles per hour, downhill, in the westbound middle lane of North Service Road, and that he checked his speedometer as he approached the intersection. He further testified that when he was about 50 yards from the intersection of North Service Road and Round Swamp Road he observed the traffic light was green for his direction of travel, and that it remained green as he entered the intersection. Plaintiff also testified that there were no vehicles traveling in front of his vehicle, that his view of the intersection as well as Round Swamp Road was not obstructed, and that traffic was stopped in both directions on Round Swamp Road. He testified that he checked for traffic in both directions of Round Swamp Road before entering the intersection. He observed a vehicle stopped at the red traffic light in the northbound left lane of Round Swamp Road. He further testified that his vehicle had traveled through two lanes of traffic in the intersection when it was struck by the defendants' vehicle. Plaintiff later testified that he did not see the Stem vehicle prior to colliding with it, and he did not hear the sound of a horn blowing or tires screeching prior to the impact between his and defendants vehicles. The plaintiff tried to turn his steering wheel to the left to avoid the collision. He stated that the vehicle he originally observed stopped at the red traffic light on northbound Round Swamp Road remained stopped at the red traffic light.
Defendant Jordan Stern testified at an examination before trial that he was operating the vehicle that was owned by his parents, defendants Norman and Claudia Stem, on the day of the accident. He was traveling westbound on Round Swamp Road, The intersection where the accident occurred is controlled by a traffic light. He stated that he does not remember whether he observed what color the traffic light for his direction of travel was prior to entering the intersection, and that he does not remember what his speed of travel was prior to entering the intersection. He also testified that he does not know what the speed limit is on Round Swamp Road, and that he does not remember whether any vehicles were traveling through the intersection prior to the accident or if there were any vehicles traveling in the same direction as his vehicle on Round Swamp Road. Jordan Stem further testified that he did not see plaintiffs vehicle prior to the collision. He learned of the accident when he felt the impact from the contact between his vehicle and plaintiffs vehicle. His vehicle was moving when the impact occurred. The defendant was looking straight ahead when the accident occurred.
Based upon the adduced evidence, plaintiff established a prima facie case that Jordan Stem's negligent operation of the Stern vehicle was the sole proximate cause of the subject accident (see Vehicle and Traffic Law § 1111 (d)(1); Lee v Mason, 139 A.D.3d 807, 33 N.Y.S.3d 76 [2d Dept 2016]; Deleg v Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 [2d Dept 2011]; Monteleone v JungPyo Hong, 79 A.D.3d 988, 913 N.Y.S.2d 755 [2d Dept 2010]; Pitt v Alpert, 51 A.D.3d 650, 857 N.Y.S.2d 661 [2d Dept 2008]; Borges v Zukowski, 22 A.D.3d 439, 801 N.Y.S.2d 544 [2d Dept 2005]). The record demonstrates that Jordan Stem proceeded into the intersection against the red light, without stopping, and collided with plaintiffs vehicle as it was traveling through the intersection. Furthermore, "[a] driver with the right of way who only has seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" (Vainer v DiSalvo, supra at 1024, quoting Yelder v Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [2d Dept 2009]; see DeLuca v Cerda, 60 A.D.3d 721, 875 N.Y.S.2d 520 [2d Dept 2009]). Since plaintiff had the right of way, he was entitled to assume that Jordan Stem would obey the traffic laws requiring him to yield the right of way to plaintiffs vehicle (see Ahern v Lanaia, 85 A.D.3d 696, 924 N.Y.S.2d 802 [2d Dept 2011]; Almonte v Tobias, 36 A.D.3d 636, 829 N.Y.S.2d 153 [2d Dept 2007]; Berner v Koegel, 31 A.D.3d 591, 819N.Y.S.2d 89 [2d Dept 2006]; see also Vehicle and Traffic Law § 1142 [a]). As a result, the evidence establishes, prima facie, that Jordan Stem was negligent as a matter of law (see Joaquin v Franco, 116 A.D.3d 1009, 985 N.Y.S.2d 131 [2d Dept 2014]; Cohen v Stanley, 262 A.D.2d 264, 690 N.Y.S.2d 736 [2d Dept 1999]).
In opposition, defendants have failed to submit any evidence in admissible form sufficient to raise a triable issue of fact on the issue of negligence (see Turner v Butler, 139 A.D.3d 715, 32 N.Y.S.3d 174 [2d Dept 2016]; Hoffman v City of New York, 137 A.D.3d 1078, 26 N.Y.S.3d 880 [2d Dept 2016]; Monteleone v Jung Pyo Hong, supra; cf. Fobbs v Shore, 171 A.D.3d 874, 95 N.Y.S.3d 883 [2d Dept 2019]). Defendants have not submitted any evidence to raise a triable issue of fact as to whether plaintiff had a red light when he entered the intersection in order to demonstrate that plaintiff may have violated the applicable Vehicle and Traffic Law (see Kaziu v Human Care Servs. for Families &Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 [2d Dept 2018]; Chuachingco v Christ, 132 A.D.3d 798, 18N.Y.S.3d425 [2d Dept 2015]; Fauvell v Samson, 61 A.D.3d 714, 877 N.Y.S.2d 194 [2d Dept 2009]). Although Jordan Stem may not be able to recall the accident, defendants are not relieved of their obligation to provide some proof from which negligence can be reasonably inferred, and they have failed to do so (see Vega v Mitja, 137 A.D.3d 1113, 27 N.Y.S.3d 672 [2d Dept 2016]; compare Napolitano v Sanderson, 167 A.D.3d 1024, 88 N.Y.S.3d 354 [2d Dept 2018]). Rather, defendants have submitted a transcript of a recorded telephone conversation purported to be between plaintiff and a representative of defendants' insurance carrier. Yet, the transcript is uncertified, unsigned, and unsworn, and therefore, is inadmissible and without probative value (see generally Pavane v Marte, 109 A.D.3d 970, 971 N.Y.S.2d 562 [2d Dept 2013]; Martinez v 123-16 Liberty Ave. Realty Corp., AH A.D.3d 901, 850 N.Y.S.2d 201 [2d Dept 2008]; Lacgnino v Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 [2d Dept 2003]). Accordingly, plaintiffs motion for partial summary judgment in his favor on the issue of negligence is granted.
The foregoing constitutes the decision and Order of this Court.