Marie Castiglione, et al., Respondents,v.Robert Kruse, et al., Appellants.BriefN.Y.May 3, 2016i I To Be A1glled By: JUSTIN B. PERRI, ESQ, Time Requested: J.O Mi11utes~---- ~ ,e&1 llrrk ~npremre Oilltt:ri APPELLATE DIVISION-SECOND DEPARTMENT MARIE CAS'HGUONF; and FRANK CASTIGLIONE, App. Div. No. 2014-10307 Plaintiffs-Appellants, -against- ROBERT KRlJS.E aml KAREN KRUSE, On tlte Brief: Defendants-Respondents. Bm1n< FOR PLAINTIFFS-APPELLANTS JUSTIN B. PERRI PLLC. 28 S. Marion Place Rockville Centre, New York 11570 (516) 500·2430 . Appellate Com/set to: MICHAl!,L S. J ,ANGl!:LLA, P.C. Attomeysfor Plai11tijfs-Appella11ts Marie Castiglione mu/ Frank Custiglio11e 888 Veterans .Memorial Highway Hctuppauge, New York 11788 (631) 285-7501) JUSTIN B. PERRI, ESQ. MICHAELS. LANGELLA, ESQ. Suffolk County Clerk's lntlexNo. 00356/2012 Echo Appellate Press, Inc. • 30 West Park Avenue• L011g Beach, New York 11561 • (516) 432-3601 frinted on Recycled Paper 21033 I i I 1\ i i ~ J ' ' I I I I ij I l STATEMENT PURSUANT TO CPLR §5531 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND DEPARTMENT ---------------------------------------------------------------------]{ Marie Castiglione and Frank Castiglione, Plaintiffs-Appellants, -against- Robert Kruse and Karen Kruse, Defendants-Respondents. ---------------------------------------------------------------------]{ 1] The index number in the Conrt below is 00356/2012. 2] The full names of the original parties arc as above. There has been no change. AppDivNo. 2014-10307 3] 4] This action was commenced in the Supreme Court, Suffolk County. 5] 6] The action was commenced by the filing of a Summons and Verified Complaint on December 19, 2011. Issue was joined by the service of a Verified Answer on or about February 3, 2012. The nature and object ofthc action is for personal injuries sustained as a pedestrian in a motor vehicle accident. The appeal is from an Order entered in the office of the Suffolk County Clerk on August 26, 2014 (I-Ion. Peter H. Mayer, J.). 7] This appeal is on a full reproduced record. l \ \ ( I r I I i' f I f i .'I ' I I ,, \ i I TABLE OF CONTENTS Preliminary Statement ............................................................................................... 1 Question Presented .................................................... , ............................................... 5 Statement of Pacts ..................................................................................................... 5 Argument ... : ............................................................................................................. 10 I. Plaintiffs' Prima Facie Entitlement to Summary Judgement Was Unrebutted by Competent Evidence of Comparative Fault.. ........................................... 10 A. Plaintiffs Established Prima Facie Entitlement to Summary Judgment. ............................................................................................ 11 B. Defendants Failed to Raise a Triable Issue of Fact as to Plaintiffs Comparative Fault. ............................................................ 12 1. The unmarked crosswalk ................................................................ 13 2. The pedestrian's duty to cross with care ........................................ 14 II. The Lower Court Clearly Erred By Leaving an Undisputed Finding of Fact for Jury Resolution ........................................................................................ 16 A. The Lower Court's El1'0I'. ................................................................... 16 B. Despite Defendants' Contentions, Pedestrians Are Allowed to Use Unmarked Crosswalks ................................................................. 18 Conclusion ............................................................................................................... 19 I i ,, \ PRELIMINARY STATEMENT This case involves a plaintiff-pedestrian who, while walking from one corner to another at a slightly offset intersection, 1 was struck by a vehicle driven by defendant-driver.2 Plaintiff3 was not in the middle of the road; she was not l 1 1 walking diagonally from one comer to another; she was simply crossing the street f l with the light in her favor within what is uncontrovertibly an unmarked crosswalk.4 ; i i· There is no evidence placing her outside of that unmarked crosswallc and New t [. York courts, in the face of contradictory testimony, will infer that she was within ~ the unmarked· crosswalk based on where she was struck by Defendant- Respondent's5 vehicle.6 Plaintiffs-Appellants bring this appeal because the lower court erred by conflating a legal finding: whether opposite sides of a pedestrian crossing at art intersection constitutes a crosswalk for purposes of V1L § J 10, with a factual 1 R. 171 (defendant-driver described the crosswalk as not rnm1ing directly north0smrth, but, if viewing the intersection from the north, it rnns "off to the east a little bit") (references to the fecord on Appeal will be cited herein as "R. _"). R. 192. 3 All references to the "Plaintiff' in the singular are to Plaintiff Marie Castiglione, 4 The New York State Legislature, in the Vehicle and Traffic Law (the "YTL"), defines a "crosswalk" as: "(a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway between the curbs or, in the absence of curbs, between the edges of the traversable roadway. [or] (b) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface." VTL § 110. 5 All references to the "Defendant" in the singular are to Defendant Karen Kruse. 6 R. 247 and Barbieri v. Vokoun, 72 A. D.3d 853, 856, 900 N.Y.S.2d 315, 318 (2d Dep't 2010). 1 " :· ! ! I i finding: whether the Plaintiff-pedestrian was walking within a crosswalk at the tirne that she was stmck by Defendant-Respondent's vehicle. The litigants argued over the former, as there is no evidence indicating that Plaintiff was outside of the unmarked crosswalk. Defendants-Respondents argued that the "designated crosswalk" was on the other side of the intersection7 and that "crossing a street without a crosswalk" requires "a heightened standard of care."8 While positing that there was no crosswalk where Plaintiff-pedestrian chose to cross the street-a crossing which is defined by law as an unmarked crosswalk9-Defendants- Respondents cited a line of inapposite cases which placed plaintiff-pedestrians in the middle of the block, 10 suddenly stepping into the street frorn between two parked cars, 11 and walking diagonally through an intersection. 12 Defendants-Respondents' references to the nearest marked crosswalk as the "designated crosswalk" was a thinly-veiled attempt to confuse the lower court by transforming an umnarked crosswalk into no crosswalk at all, forcing Plaintiff- 7 R. 254. 8 R. 268 (citing Franco v. Zingarelli, 72 A.D.2d 211, 424 N.Y.S.2d 185 (1st Dep't 1980)). 9 See VTL § 110 (full text of the statute at note 4, supra); see also Fan v. Buzzitt1!, 42 A.D.2d 40, 344 N.Y.S.2d 788 (2d Dep't 1973) ("at a 'T' intersection that portion of the roadway included within tho prolongation of the lateral lines of the sidewalk running from the stem to the top of the 'T' on the opposite side of the highway, between curbs, is a crosswalk within the meaning of subdivision (a) ofsection 110 of the Vehicle and Traffic Law."). 10 R. 265 (citing Parnja v. Brown, 18 A.D.3d 636, 795 N.Y.S.2d 666 (2d Dep't 2005)) and R. 268 (citing Galo v. Cunningham, 106 A.D.3d 865, 965 N.Y.S.2d 571 (2d Dep't 2013)). 11 Id. (citing Franco v. Zingarelli, 72 A.D.2d 211, 424 N.Y.S.2d 185 (1st Dep't 1980)). 12 Id. (citing Perez v:, Sandrowitz, 180 N.Y. 397 (1905)) (defenda11t absolved from liability where his wagon ran over a boy who suddenly ran diagonally across the street and towards the oncoming traffic) and R. 281-82 (citing Moskowitz v. Israel, 209 A.D.2d 676, 619 N.Y.S.2d 152 (2d Dep't 1994)). 2 ,, ,, " ! !l ~ \ ~ ii i ,\ ~' I i' I !_ ,\ I. i' I' i I I f Appellant to cross at marked crosswalks only. If Defendants~Respondents had it their way, pedestrians in the State of New York would be required to walk, potentially for several miles, to find the nearest "designated" (i.e., marked) crosswalk in order to cross the street. After detennining that Plaintiffs "established their prima facie entitlement to summary judgment on the issue of liability," the lower court then mistakenly applied the same line of cases which apply to a plaintiffs presence within an unmarked crosswalk, though this was never at issue. 13 In fact, the Defendant- driver admits that she did not see Plaintiff until after the accident, and, as a result, cannot place her outside of the unmarked crosswalk. 14 What, exactly, the lower court would expect a jury to resolve is unknowable. Assuming, arguendo, that Plaintiff-Appellant was forced, by law, to walk within the nearest marked crosswalk, there is no triable issue of fact on liability as she admits to walking in an unmarked crosswalk. n: on the other hand, the lower court planned to send to the jury the issue of whether Plaintiff-Appellant was crossing within a crosswalk, there are no competing versions of events to choose from: the record only demonstrates that Plaintiff-Appellant was crossing within the unmarked crosswalk. As such, there is nothing for a jury to resolve as to Defendant-Respondent's liability. 13 R. 5-6. 14 R. 192. 3 The lower court's error of law is illuminated by the mechanics of its opinion, ' . which holds that Plaintiff-Appellant established prima facie entitlement to summary judgment on liability, yet detennined that "[t]he question of whether a person was within an unmarked crosswalk at the time of an accident is a factual matter for jury resolution."15 In order for a plaintiff to make out its prima facie case on liability and still be denied summary judgment, a defendant must raise a triable issue of fact. .Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d395, 165 N.Y.S.2d 498 (1957); see also Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392, 393 (2d Dep't 2005) ("The function of the court on a motion for summary judgment is not to resolve issues of fact or detennine matters of credibility, but merely to determine whether such issues exist"). Here, there is no admissible evidence which places Plaintiff-Appellant outside of the uiunarked crosswalk. 15 R. 6 (quoting Olson v. Dougherty, 128 A.D.2d 920, 921, 512 N.Y.S.2d 730 (3d Dep't 1987)). 4 QUESTION PRESENTED .1. Is the question of whether a person was within an unmarked crosswalk at the time of an accident a factual matter for juiy resolution where (a) plaintiff has satisfied its prima facie burden and (b) defendant failed to submit admissible evidence to raise a triable issue of fact as to comparative fault? The lower court incorrectly answered "yes." STATEMENT OF FACTS On October 19, 2011, Marie Castiglione (hereinafter "Appellant," "Plaintiff," or "Mrs. Castiglione") parked her car on Keith Lane, just north of Montauk Highway, at approximately 6:40 a.m. 16 Sunrise was not until 7:08 a.m., so it was still dark outside, but the street was well illuminated.17 It was also raining moderately. 18 After parking her car, Mrs. Castiglione approached Montauk Highway and waited on the northeast coiner of Montauk and Keith as the iush hour traffic passed by.19 Her job at where she had worked for the previous twenty years, was just across the street.20 This had been Mrs. Castiglione's morning ritual for the previous seventeen years since moving approximately one mile north on Keith Lane.21 For almost two decades she had, 16 R. SJ-84. 17 R. 233 at 8-13. 18 R. 213 at 14-18. 19 R. 93 at 13 through R. 98 at 15. 20 R. 80 21 R. 5 and R. 84 at 18-20. 5 I • i } on over four thousand occasions,22 parked her car near this location and walked safely across Montauk llighway to work.23 The crosswalk that she used runs north-south on the east side of Montauk Highway; it is an mm1arked crosswalk with a yield line marking where westbound cars must stop for red lights. 24 The traffic signal changed, giving Mrs. Castiglione the right of way. 25 She paused for a few seconds, observed that the traffic on Montauk llighway had stopped, and began to cross the street at a "moderate" pace.26 The only vehicle that she had noticed entering the intersection was coming out of the hospital parking,;. lot, driving north and turning to head west, so that car posed no danger to Mrs. Castiglione.27 She walked across the westbound lane, then the turning lane (for westbound drivers making a left tum into the hospital parking lot).28 She paused before crossing the double yellow line to again observe if any cars were coming.29 She was approximately halfway into the eastbound lane when she was struck on her right side by a Ford 500 driven by Karen Kruse (hereinafter "Respondent," "Defendant," or "Mrs. Ktuse").30 Mrs. Castiglione suffered fractures of her right 22 Mrs. Castiglione worked five days per week. (R. 80 at 19-20). 23 R. 84. 24 R. 85 and R. 156 (the photograph at R. 156 depicts the yield line which nms from the northeast comer of the intersection towards Good Samaritan Hospital). 25 R. 98. 26 R. 99, 103, 105, 217, and 237. 27 R. 103-04. 28 R. 106-08. 29 R. 106-08, 234. 30 R. 108-10, 240. 6 ( foot and right knee, torn ligaments and tendons in her right foot, right elbow, and · right shoulder.31 As a result, she was unable to return to work after the accident.32 She has since endured rotator cuff surgery, tendon repair surgery in her right elbow, and multiple ankle surgeries, resulting in a screw being placed in her foot, her foot remaining in multiple casts over several montlls, inability to walk without crutches, and physical therapy. 33 Mrs. Castiglione has since been on a pain management regimen and remained confined to her home for several months after . 34 tile accident. Mrs. Kluse, the driver of the Ford 500, was also on her way to work on the morning of October 19, 2011.35 She was heading south on Keith Lane until she reached a red light at Montauk Highway.36 She testified that she waited for the light to change, made a left tu111 heading eastbound, and suddenly felt "as if somebody threw a gigantic boulder at the car."37 She pulled over immediately and realized that "it was a person."38 Mrs. Kruse testified that she was only driving five or six miles per hour when she made the left tui·n and struck Mrs. 31 R. 40, 49, and 59. 32 R. 80. 33 R. 42, 61, 130-41. 34 Id. 35 R. 176. 36 R. 182-85. 37 R. 192 at 18-19. 38 R. 192 at 24-25. 7 I I i \i i f' I I I f i ; i Castiglione.39 Mrs. Kruse exited her vehicle to check on Mrs. Castiglione.40 Mrs. Kruse noticed a man get out of his car on the westbound side of Montauk Highway.41 The man approached and yelled at her saying "What the hel~ didn't you see her?"42 Mrs. Kruse waited with Mrs. Castiglione until the police anived.43 In her signed police statement, Mrs. Krnse wrote that "a pedestrian ... had been hit,"44 after she was "blinded by bright lights"45 from oncoming traffic, but by the time her deposition was taken almost one year later, she had convinced herscH46 that "a pedestrian ran into [her] car."47 Mrs. Castiglione never saw Mrs. Kluse's car coming from behind;48 Mrs. Kluse never saw Mrs. Castiglione crossing in front of her vehicle.49 One witness watched the accident unfold; David Cabrera, the disinterested witness who yelled at Mrs. Kluse, was stopped in his vehicle on the east side of the intersection.50 He was heading west to his job.51 Mr. Cabrera testified that Mrs. Castiglione waited 39 R. 193 at 3. 40 R. 194. 41 R. 195. 42 R. 196 at 2-3. 43 R. 196. 44 R. 242. 45 Id. 46 Mrs. Kn1se testified that she "believe[d] that's what happened." R. 201 at 13. 47 R. 201. 48 R. 104. 49 R. 191-92. SOR. 211. 51 R. 212. 8 [ l ! " j ! I i J' l l ' ) I ' "two seconds, three seconds" after the light changed before she began to cross.52 He testified that Mrs. Castiglione looked and "made sure the cars were stopping"53 as she crossed directly in front of his car "at the lined crosswalk."54 Then he watched as Mrs. Kruse "made a quick tum ... at a high rate of speed."55 Mr. Cabrera estimated that Mrs. Krnse was travelling at "20 miles per hour" when her vehicle struck Mrs. Castiglione.56 In December 2013, Plaintiffs moved for partial summary judgment on the issue of liability. 57 Defendants cross-moved for summary judgment dismissing the complaint.s8 Plaintiffs argued that Mrs. Kruse "was negligent and breached her duty by violating Vehicle and Traffic Law (the 'VTL') §§ l ll l(a)(3) and 1146 in failing to see Mrs. Castiglione, to sound the horn, and to exercise due care to avoid striking her as she crossed Montauk Highway in the unmarked crosswalk.''59 Defendants argued that "plaintiff failed to use duo care while crossing Montauk Highway, attempted to cross the road outside of the crosswalk, and failed to yield the right of way to moving vehicles, thus, they should be absolved, as a matter of 52 R. 217 at 11-12. 53 R. 217at16. 54 R. 237. SS R, 219. 56 R. 220 at 7. 57 R. 3. ss R. 3. s9R. 4. 9 law, from any liability for the accident."60 Justice Mayer found that "plaintiffs established their prima facie entitlement to summmy judgment on the issue of liability," but, taking a Solomonic approach, the lower court denied both smnmary judgment motions.61 Justice Mayer's sole justification for denying Plaintiffs' summary judgment was based on a 1987 decision out of the Third Department.62 Justice Mayer cited the following language from Olson: "[t]he question of whether a person was within an unmarked crosswalk at the time of an accident is a factual matter for jury resolution."63 I. ARGUMENT Plaintiffs' Prima Facie Entitlement to Summary Judgement Was Unrebutted by Competent Evidence of Comparative lfault "To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident." Ramos v. Bartis, 112 A.D.3d 804, 804, 977 N.Y.S.2d 315 (2d Dep't 2013) (citations omitted); see Thoma v. Ronai, 82 N.Y.2d 736 (1993). "Where the movant has established his or her entitlement to judgment as a matter of law, the opposing pa1ty may defeat the motion for summary judgment by submitting 6oR. 4. 61 R. 5-6. 62R. 6. 63 R. 6. 10 sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault." Ramos, 112 A.D.3d at 804. Plaintiffs satisfied their burden, but the lower court determined that Defendants raised a triable issue of fact over whether Plaintiff was in the unmarked crosswalk. R. 6. The lower comi's ruling will allow liability to proceed to a jury on this "issue of fact" despite the fact that there was no testimony, outside of the unsupported testimony of Defendants' counsel, placing Plaintiff outside of the unmarked crosswalk. A. Plaintiffs Established Prima Facie Entitlement to Summary Judgment Where pedestrians crossing the street are struck by moving vehicles, entitlement to judgment as a matter of law is established through evidence that plaintiff entered the subject intersection after (a) exercising reasonable care and was (b) walking within the crosswalk with the pedestrian crossing signal in her favor when she ( c) was struck by a vehicle operated by the defendant who failed to yield the right of way. Brown v. Mackiewicz, 120 A.D.3d 1172, 1173, 992 N.Y.S.2d 314 (2d Dep't 2014) (plaintiff "entered the crosswalk at the subject intersection after exercising reasonable care by looking in both directions for approaching traffic, was walldng within the crosswalk with the pedestrian crossing signal in her favor, and was at least half way across the street when she was stiuck by an ambulance operated by the defendant driver, Elizabeth Mackiewicz, who failed to yield the right of way") (citations omitted). 11 I [ I. I I \ Plaintiff Marie Castiglione established, with her own testimony and through the testimony of non-party David Cabrera, that she exercised reasonable care by looking in both directions for approaching traffic prior to entering the crosswalk. R. 99-104, 218. It is undisputed that the signal was in Plaintiffs favor and she was more than halfway across Montauk Highway when she was struck by Defendant's vehicle. R. 98, 108-10, 217. Finally, Plaintiff, a non-party, andthe police report all place Plaintiff in the unmarked crosswalk where she was struck by Defendant's vehicle. R. 94, R. 237 ("[Plaintiffjwas crossing at the lined crosswalk and not in the middle of the street"), 241. The lower court recognized that Plaintiffs testimony indicated that she "proceeded to walk within the unmarked crosswalk." R 4. As such, the lower court properly found that "plaintiffs established their prima facie entitlement to summary judgment on the issue of liability." R 5-6. B. Defendants Failed to Raise a Triable Issue of Fact as to Plaintiff's Comparative Fault Once the movant has established prima facie entitlement to judgment as a matter of law, non-movant must produce evidentiary proof in admissible for.m sufficient to require a trial of material questions of fact on which he rests his claim. Zuckennan v. City ofNew York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are .insufficient." Id. at 562. Defendants attempt to raise triable issues of fact 12 regarding Plaintiffs comparative fault, but Defendants' "evidence" is, by law, insufficient to defeat summary judgment. First, Defendants cannot place Plaintiff outside of the unmarked crosswalk (this explains why Defendants attempt to recast the unmarked crosswalk as no crosswalk at all). Second, Defendants attempt to burden Plaintiff with a standard of care that does not exist in New York jurisprudence, leading to Defendants' citation to a slew of inapposite cases. 1. The unmarked crosswalk Defendants cannot possibly place Plaintiff outside of the unmarked crosswalk because Defendant Kruse did not see Plaintiff prior to rnnning her over with Defendant's Ford 500. R. 191-92. A defendant-driver's attempt to prove comparative negligence by placing plaintiff-pedestrian outside of the crosswalk is purely speculative when defendant-driver did not see plaintiff-pedestrian. See, ~, Coutu v. Domingo, 123 A.D.3d 410, 998 N.Y.S.2d 40 (1st Dep't 2014); Sulaiman v. Thomas, 54 A.D.3d 751, 863 N.Y.S.2d 723 (2d Dep't 2008). Without competent evidence placing a pedestrian outside of a crosswalk, a defendant- : driver's issues of fact are merely feigned and should be ignored by the trial court. 1! ~ . '[I See Rosenblatt v. Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578 (2d Dep't 2008). Even if Defendant were to claim that Plaintiff was not in the unmarked crosswalk at the time of impact, that claim would be insufficient to raise a triable issue of fact in this case because such a claim would be inconsistent with I \ 13 \ undisputed evidence. See Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315, 318 (2d Dep't 2010). In Barbieri, defendant's car was making a left turn and struck plaintiff-pedestrian. Id. at 854. Defendant in Barbieri attempted to place plaintiff outside of the crosswalk by claiming that his vehicle hit the pedestrian before the vehicle entered the crosswalk, but the Appellate Division determined that this claim was inconsistent with the fact that defendant-·driver was executing a left tum at the time of the impact. Id. at 855-56. Like defendant in Barbieri, Defendant in the case at bar executed a left tum when her vehicle struck Plaintiff.64 As such, even if Defendants attempted to place Plaintiff outside of the unmarked crosswalk-which they did not-there is a presumption that Plaintiff was within l• " I the unmarked crosswalk at the time that she was struck by Defendant's Ford 500. !! Id. at 855-56 2. The pedestrian's duty to cross with care Defendants, in their briefs below, also make much noise over Plaintiffs alleged failure to observe whether cars were approaching after she e11tered the intersection, but the law simply does not demand that a pedestrian keep her head on a swivel as she crosses the street. Pedestrians are expected to observe whether traffic is approaching before entering the crosswalk. See, e.g., Garcia v. Lenox Hill Florist III, Inc., 120 A.D.3d 1296, 993 N.Y.S.2d 86, 88 (2d Dep't 2014) 64 R. 192. 14 (plaintiff "looked for approaching traffic before he began to cross") (emphasis added); Hamilton v. King Tung Kong, 93 A.D.3d 821, 940 N.Y.S.2d 901, 901 (2d Dep't 2012) (plaintiff "looked for approaching traffic before he began to cross") (emphasis added). After entering the crosswalk, a pedestrian must be mindful of hazardous conditions that are readily observable by the reasonable use of her senses. Popek v. State, 279 A.D.2d 622, 622, 719 N.Y.S.2d 708, 708 (2d Dep't 2001). Defendants argue that "plaintiff never once looked to see if any vehicles waiting in the southbound lane of Keith Lane were intending to make a left tum on to the eastbound lane ofMontauk Highway." R. 257. Defendants' contention that it would be reasonable for a pedestrian to look over her shoulder into the intersection behind her for turning cars-taking her attention away from cars that might not stop on the highway or cars turning in front of them-is ridiculous and unsupp01iable. Put simply, which party should spot the other: (a) the pedestrian crossing the street who looks left, right, and forward for danger while danger is slowly approaching at five miles per hour from behind or (b) the driver who is making a left tun1 at the pace of a brisk walk and continues to tum-despite being "blinded"-into a lane while a pedestrian has just crossed two and a half lanes right in front of her face? The lower court knew the answer to this question, but was blinded by a specious argument. i I 15 \ I ,1 I I II. The Lower Court Clearly Erred By Leaving an Undisputed Finding of Fact for Jnry Resolution A. The Lower Court's Error Unable to place Plaintiff outside of the unmarked crosswalk and unable to make a legitimate claim for comparative negligence based upon the manner in which Plaintiff crossed the street, Defendants below attempted to cloud the issue by forcing Plaintiff to cross at the nearest marked crosswalk. Forcing pedestrians to find the nearest marked crosswalk is simply, obviously, not the law of New York, but Defendants' argument was confusing enough to survive summary judgment. Defendants supported their argument below by citing, inter alia, Moskowitz v. Israel, as "an almost identical set of facts" that led the Second Department to deny liability to the plaintiff-pedestrian. R. 257 (citing Moskowitz, 209 A.D.2d 676 (2d Dep't 1994)). In the same sentence that disingenuously pronounces Moskowitz as having an "almost identical" fact pattern to the case at bar, Defendants-Respondents concede that the pedestrian in that case "crossed an intersection diagonally without ever looking left or right." R. 258. This, in a nutshell, is Defendants-Respondents' case: an unmarked crosswalk is no place for pedestrians to dare cross the street. Counsel for Defendants-Respondents, aware that an unmarked crosswalk is legally no different than a marked crosswalk, avers in her Reply Affirmation that "the plaintiff, MARIE CASTIGLIONE, attempted to cross a [sic] Montauk 16 Highway, outside of the marked crosswalk, on a dark and rainy early morning, willfully blind to any oncoming traffic." R. 284. This careful placement of Marie Castiglione "outside of the marked crosswalk," rather than outside of the unmarked crosswalk, is the deliberate source of confusion that caused Justice Meyer's etTor of law and, as a result, this appeal. As a result of Defendants-Respondents' sophistry, Justice Mayer was compelled to deny Plaintiffs-Appellants' motion for summary judgment. The lower court's justification for its denial was based solely on the following language from Olson v. Dougherty: "[t]he question of whether a person was within an unmarked crosswalk at the time of an accident is a factual matter for jury resolution." 128 A.D.2d 920, 921, 512 N.Y.S.2d 730 (4th Dep't 1987). If Justice Mayer's interpretation of Olson is correct, all cases involving pedestrians crossing at an unmarked crosswalk must go to a jury. But this interpretation is at odds with more recent New York jurisprndence for obvious reasons. See infra Section II.B. This issue only goes to a jury for resolution if there are competing versions of events to resolve. Here, the jury would only hear one version of where Plaintiff was from the tin1e that she entered the intersection until the time that she was strnck by Defendant's vehicle: that she was crossing M.ontauk Highway within the unmarked crosswalk. Nothing in the Record places Plaintiff outside of the unmarked crosswalk. 17 B. Despite Defendants' Contentions, Pedestrians Are Allowed to Use Unmarked Crosswalks To be clear, it is the black letter law of New York that a pedestrian who exercises care by looking for approaching traffic before she enters an unmarked crosswalk is, absent admissible evidence of comparative negligence, entitled to summary judgment on liability against who driver whose vehicle strikes her. Garcia v. Lenox Hill Florist III, Inc., 120 A.D.3d 1296, 993 N.Y.S.2d 86 (2d Dep't 2014). In Garcia, the Second Department affirmed the lower court's finding that plaintiff was entitled to summary judgment on liability. Id. Plaintiff in Garcia had crossed 2 1/2 of 3 lanes while walking within an unmarked crosswalk when he was struck by defendant's vehicle while that vehicle was making a left turn. Garcia v. Lenox Hill Florist III, Inc., 41Misc.3d1205(A), 977 N.Y.S.2d 667 (Table) (Sup. Ct. Queens Co., 2013). The driver in Garcia admitted to police that he did not see the pedestrian prior to impact. Id. at *4. Despite not seeing Plaintiff prior to impact, Defendant's driver submitted an affidavit that he was told that Plaintiff was outside of the unmarked crosswalk. Id. at *6. The Second Department affirmed I the lower court's finding that unsupported speculation placing a plaintiff outside of an unmarked crosswalk is insufficient to raise a triable issue of fact. Garcia, 993 N.Y.S.2d at 88. Any attempt in this case to place Plaintiff outside of the unmarked crosswalk is similarly impotent speculation and insufficient to raise a triable issue 18 of fact. Garcia is controlling and warrants reversal of the lower court's denial of partial summary judgment on liability to Plaintiffs. CONCLUSION The lower comi was conect in finding that Plaintiffs established prima facie entitlement to summary judgment, but it had no evidential)' basis to find that Defendants raised a triable issue of fact as to whether Plaintiff was outside of the unmarked crosswalk. The record is devoid of any evidence that would make that I issue ripe for a jmy detennination. Plaintiffs respectfully request that this Court ~ grant them partial summary judgment on the issue of liability. Dated: Rockville Centre, New York March 20, 2015 tinB. Pe1Ti ustin B. Peni PLLC 28 South Marion Place Rockville Centre, NY 11570 ·Phone: (516) 500-2430 Michael S. Langella Michael S. Langella, P.C. 888 Veterans Memorial Highway Hauppauge, NY 11788 Phone: (631) 285-7500 COUNSEL FOR PLAINTIFFS-APPELLANTS Marie Castiglione and Frank Castiglione 19 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(1) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman 14 Point size: Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 4,589.
