Marie Castiglione, et al., Respondents,v.Robert Kruse, et al., Appellants.BriefN.Y.May 3, 2016To Be Argued By: JUSTIN B. PERRI, ESQ. Time Requested: 10 Minutes ~.efu 1J.ork ~upr.etttt ([.ourt APPELLATE DIVISION-SECOND DEPARTMENT MARIE CASTIGLIONE and FRANK CASTIGLIONE, Plaintiffs-Appellants, -agai.nst- App. Div. No. 2014-10307 ROBERT KRUSE and KAREN KRUSE, ·'I' i On the Brief: Defendants-Respondents. REPLY BRili\F FOR PLAINTIFFS-APPELLANTS JUSTIN B. PERRlPLLC 28 S. Marion Place Rockville Centre, New York 11570 (516) 500-2430 Appellate Counsel to: MICHAELS. LANGELLA, P.C. Attorneys for Plaintiffs-Appellants Marie Castiglione and Frank Castiglione 888 Veterans Menwrial Highway Hauppauge, New York 11788 (631) 285-7500 JUSTIN B. PERRI, ESQ. MICHAELS. LANGELLA, ESQ. Suffolk County Clef'k's Index No. 00356/2012 Ecl10 Appellate Press, Inc. •30 West Park Avenue· Long Beach, New York 11561 • (516) 432,3601 Printed on Recycled Paper 21234 TABLE OF CONTENTS PAGE Reply Argument ........................................................................................................ 1 I. Defendants-Respondents' principal argument, that Plaintiff-Appellant was not crossing within the unmarked crosswalk, is not properly before this Court and not supported by the record ............................................................ 1 A. Defendants-Respondents' argument, raised for the first time on appeal, is not properly before this Court .............................................. 1 (Defendants-Respondents' arguments below .................................... 2 2. Defendants-Respondents' new approach ......................................... 3 B. Defendants-Respondents' argument is not supported by the record .................................................................................................... 4 II. Defendants-Respondents' remaining arguments over Plaintiff-Appellant's duty of care while crossing the street are absurd ................................... : ...... 10 Conclusion .............................................................................................................. 13 I. REPLY ARGUMENT Defendants-Respondents' principal argument, that Plaintiff- Appellant was not crossing within the unmarked crosswalk, is not properly before this Court and not supported by the record. Defendants-Respondents managed to deceive the lower court with their argument that a pedestrian alleging to have crossed the street at an unmarked crosswalk cannot possibly win summary judgment on liability. But they are not willing to push their luck a second time. They have shifted their approach for the benefit of this Court and argue, for the first time on appeal, that there is conflicting testimony over whether Plaintiff-Appellant was crossing within an unmarked crosswalk. There is not Even if there was conflicting testimony contained in the transcripts of the three deponents, this issue was never raised before the court below and, therefore, is not properly before this Court. A. Defendants-Respondents' argument, raised for the first time on appeal, is not properly before this Court. Defendants-Respondents' principal argument in their opposition brief is that testimony submitted to the court below "raise[s] issues of fact as to whether or not the Plaintiff-Appellant was located on the corner of Montauk. Highway and Keith A venue, or if she was standing closer to the westbound traffic stop line for the subject intersection, which is not located on the comer." Brief for Defendants- Respondents (hereinafter "Opp. Br.") at 4. This issue was never raised by Defendants-Respondents below and, as such, is not before this Court. Arguments l l I J I I ' raised for the first time on appeal are not properly before the appellate division. Pineda v. Elias, 125 A.D.3d 738, 739, 4 N.Y.S.3d 100 (2d Dep't 2015). 1. Defendants-Respondents' arguments below Defendants-Respondents' unequivocally argued below that when a pedestrian crosses the street at an unmarked crosswalk, that pedestrian does so at her own peril, without the protection of the Vehicle and Traffic Law of New York ("VTL"). Below are excerpts of all of Defendants-Respondents' arguments on this issue: "• Although the designated crosswalk is on the west side of the intersection, the plaintiff would usually, and did on October 19, 2011, cross on the east side, outside of any crosswalk, because it was a quicker route to work. (Pages 20, 22) (emphasis added) • The plaintiff was fully aware that the designated crosswalk traversing Montauk Highway was the west side of the intersection, yet she chose to cross outside of the crosswalk, on the east side of the intersection. (Page 20.)" (R. 254 at if5) (emphases added). "Although crossing the street without a crosswalk is not, per se, contributory negligence, the pedestrian is, nevertheless, required to use a heightened standard of care when crossing without a crosswalk." (R. 268 at ifl4) (emphasis added). "... the plaintiff, Marie Castiglione, attempted to cross a [sic] Montauk Highway, outside of the marked crosswalk, on a dark and rainy early morning, willfully blind to any oncoming traffic." (R. 284 at if5) (emphasis added). The excerpts above constitute all of Defendants-Respondents' arguments on record on the issue of where Plaintiff-Appellant crossed the street on the morning in question. These excerpts clearly demonstrate that Defendants-Respondents' 2 arguments to the lower court revolved around the false assumption (now conceded by Defendants-Respondents on appeal) that there was no crosswalk on the east side of the intersection simply because there was no marked crosswalk on the east side of the intersection. Defendants-Respondents otherwise did not take issue with where Plaintiff-Appellant crossed, but with how she crossed, which is addressed briefly below in section II and more fully in the Brief for Plaintiffs-Appellants. 2. Defendants-Respondents' new approach Defendants-Respondents argued below that Plaintiff-Appellant was not in the "designated crosswalk"-a term used by counsel for Defendants-Respondents to describe the marked crosswalk located to the west of Keith Lane, running across Montauk Highway. Defendants-Respondents failed to raise the issue of whether Plaintiff-Appellant was within or outside of the unmarked crosswalk on the east side of that intersection because Defendants-Respondents were committed to their argument that an unmarked crosswalk is not a crosswalk at alL In the face of contrary authority raised by Plaintiffs-Appellants, Defendants-Respondents now speculate that Plaintiff-Appellant was outside of the unmarked crosswalk, which forces them to raise their new argument: that there is conflicting testimony over whether Plaintiff-Appellant was within or outside of the unmarked crosswalk. This argument is not properly before this Court. Pineda, supra, 125 A.D.3d at 739; see also Angel Fabrics Ltd. v. Cravat Pie11"e, Ltd., 51 A.D.2d 951, 381 N.Y.S.2d 3 497 (1st Dep't 1976) ("this issue was not raised below and our review should be limited to issues raised in the record and passed upon by Special Term"). Even if this argument had been preserved, there is no material conflicting testimony to overturn the lower court's ruling that Plaintiffs-Appellants satisfied their prima facie burden. See infra, section LB. B. Defendants-Respondents' argument is not supported by the record. Plaintiffs-Appellants concede that the testimony of the three parties who were deposed, 1 Plaintiff-Appellant Castiglione, Defendant-Respondent Kruse, and non-party Cabrera, is not entirely consistent on the most granular of details. But the inconsistencies contained in the record are immaterial to the question at hand: whether or not Plaintiff-Appellant crossed within the unmarked crosswalk. If plaintiffs were required to demonstrate 100% consistency on all submitted testimony in order to satisfy their prima facie burden, it would be nearly impossible for trial courts to grant liability as a matter of law. See Rodriguez v. Forest City Jay Street Associates, 234 A.D.2d 68, 70, 650 N.Y.S.2d 229, 231 (1st Dep't 1996) ("minor, immaterial inconsistencies in the testimony of the plaintiff will not preclude granting summary judgment") (citations and quotations omitted). 1 E.g., whether or not Plaintiff-Appellant was "flying up in the air" (as non-party witness Cabrera describes the accident at R. 218) or whether she was only run over and never tossed into the air (as Plaintiff-Appellant describes the accident at R. 113). 4 Only one of the alleged "inconsistencies" cited by Defendants-Respondents is material to the issue presented on this appeal: Defendants-Respondents claim that "Although Exhibit 'A' depicts the intersection of Keith Lane and Montauk Highway, it does not show the location of the impact, which the Plaintiff-Appellant indicated was more left than what the photograph showed." (Opp. Br. at 9) (citing R. 111) (emphasis added). To put this "inconsistency'' into context, this Court must be made aware of the testimony that Defendants-Respondents cite to: Q I'm going to hand you once again Defendant's Exhibit A. Is it shown anywhere in that photograph where the exact point ofthe impact was (handing)? A (Viewing.) No. Q It's not shown in there? A Well, it's shown, but I can only tell you it was on the east 'Q But you can't tell me exactly where? MR. LANGELLA: By using that photograph, she said, "No." Q So is it correct to say, it's not shown in that photograph where the impact took place? A It's not shown. · Q So looking at Defendant's Exhibit A, did the impact take place further to the left of this photograph? MR. LANGELLA:It's a very confusing question. Generally, the area might be shown, but it doesn't show the eastbound lane of that side? 5 MS. ANDREOTTA: Well, I'm asking her generally if it shows the eastbound lane. MR. LANGELLA; Does it generally show the area where you would· have been struck? I mean, you can't specifically see the lane. MS. ANDREOTTA: Note my objection to form. CONTINUED EXAMINATION BY MS. ANDREOTTA: Q: Is the area where the impact took place shown in this photograph, not specifically exactly where in that photograph, but is it shown where the impact took place? · A: I'm confused. Q: If you don't lmow, you can say you don't know. A: I don't know. MR. LANGELLA: You don't lmow from looking at this photograph? Is that your answer, by using this photograph, you don't know? THE WITNESS: I can say it's here, but you can't see the lane (indicating). MR. LANGELLA: Point to the area that you're talking about. THE WITNESS: It's in here (indicating). MS. ANDREOTTA: Would you allow your client to put a marking on that area? MR. LANGELLA; No, because it's an unfair -- you have photographs that show that lane. 6 MS. ANDREOTTA: I don't. I have these photographs (indicating). CONTINUED EXAMINATION BY MS. ANDREOTTA: Q: Did you review any photographs before testifying here today? A:No. MS. ANDREOTTA: The witness is pointing to an area on the middle portion of the eastbound lane on the left side of the photograph. (R. 110-13) (emphases added). So, in reality, the witness (Plaintiff-Appellant) expressed her confusion about the question as it was asked by Defendants- Respondents' counsel, then affirmed twice verbally and two more times by pointing at the location on the photograph that the area where she was struck by Defendant-Respondent's vehicle was depicted on the photograph. To attempt, for the first time, to cast doubt on the credibility of Plaintiff-Appellant's prima facie case by claiming that "Plaintiff-Appellant indicated [the impact] was more left than what the photograph showed[,]" (Opp. Br. at 9) (citing R. 111) is both improper and assumes that neither Plaintiffs-Appellants nor this Court will bother to read the pages of the transcript excerpted above. Rodriguez, supra, is instructive: "We are unpersuaded by defendants' arguments that there are material issues of fact with respect to the manner in which plaintiff's accident occurred or that there are bona fide credibility issues. There is no bar to granting partial summary judgment on plaintiffs testimony alone 7 when no bona fide issue as to his credibility exists. While it is true that plaintiff was unable to recall certain basic matters, these are not the kind of genuine credibility questions raised when, for example, the injured worker's version of the accident is inconsistent with either his own previous account or that of another witness. Moreover, even minor, immaterial inconsistencies in the testimony of the plaintiff will not preclude granting summary judgment. Accordingly, plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) claim." Rodriguez, supra, 650 N.Y.S.2d at 231 (citations and quotations omitted). Any other allegations of inconsistent testimony constitute feigned issues of fact that cannot defeat aprimafacie case for summary judgment, as Defendant-Respondent did not observe Plaintiff-Appellant until after the accident. Benedikt v. Certified Lumber Corp., 60 A.D.3d 798, 875, N.Y.S.2d 526 (2d Dep't 2009). The idea that Plaintiff-Appellant was sollle twenty feet from the comer2 is also belied by the police report as well as Defendant-Respondent's own testimony. The police report indicates that Plaintiff-Appellant was stricken while Defendant- Respondent's car was in the process of making a left tum. (R. 240). Defendant- Respondent similarly states that she struck Plaintiff-Appellant while her vehicle was on an angle, in the process of completing her tum when she felt the impact to the driver's side of her vehicle. (R. 198). So Plaintiff-Appellant could not possibly have been twenty feet from the comer, or, for that matter, "lllore left than 2 Defendants-Respondents cite Lopez v. Beltre, 59 A.D.3d 683 (2d Dep't 2009) in support of their argument that Plaintiff-Appellant was somewhere other than an unmarked crosswallc (Opp. Br. at 22). Plaintiff in that case was "20 feet south of [the crosswalk]." Lopez, 59 A.D.3d at 685. 8 what the photograph [at R. 156] showed." Save the speculative arguments made by Defendant-Respondent's counsel, there is no testimony in the record placing Plaintiff-Appellant outside of the crosswalk. Defendant-Respondent herself describes the intersection as "off to the east a little bit," (R. 171) and the photographs of the intersection (R. 158-59) do not demonstrate that the white line is any more than a car's length from the corner. In their opposition brief, Defendants-Respondents also speculate that Plaintiff-Appellant, crossing from the con1er and eventually walking somewhere near the stop line, may have been walking diagonally. (Opp. Br. at 24)3 While Plaintiff-Appellant may have been walking on some line other than due south, doing so is not an issue of fact that requires jury resolution because pedestrians must walk at an angle at this type of intersection to stay within the unmarked crosswalk. To say otherwise is tantamount to erasing all of the inarked crosswalks in the State of New Yorlc that run at an angle-they are not difficult to find. Also, Defendant-Respondent's argument hypothesizes-with no evidentiary basis-that Plaintiff-Appellant was precisely on "the corner," as if this constitutes one square foot of space. Setting aside the unavoidable fact that this issue of precise 3 In support of their argument, Defendants-Respondents cite to two inapposite cases: Moskowitz v. Israel, 209 A.D.2d 676, 619 N.Y.S.2d 152 (2d Dep't 1994), a case described by Defendants- Respondents below as "almost identical" to the case at bar because that pedestrian "crossed an intersection diagonally without ever looking to her left of [sic] right" (R. 258-259) and Campbell v. Crimi, 267 A.D.2d 343, 344, 700 N.Y.S.2d 64 (2d Dep't 1999), a case where "[t]he injured plaintiff exited a vehicle which was stopped approximately 50 feet from an intersection, moved between stopped cars, and was struck by the defendant's vehicle in an adjoining lane of traffic." 9 positioning was never raised below, there can be no doubt that when Plaintiff- Appellant, at her deposition, placed herself on "the corner," she was talking about an expansive area that rnns from one side of the corner to the other, bordered on both sides by stop lines for traffic. Even accepting all of Defendants-Respondents' unfounded conjecture as trne, it remains that a crosswalk is six feet wide, giving pedestrians space while.walking from one comer to the other-pedestrians are not required to cross the street on a tightrope. Finally, it is important to note that the lower court found that Defendants- Respondents themselves argued that Plaintiff-Appellant "failed to use the care of an ordinary prudent person when crossing Montauk Highway, a heavily trafficked road, in an umnarked crosswalk." (R 6). With the lower court finding no factual dispute over Plaintiff-Appellant's presence in the unmarked crosswalk, there was no issue of fact to rebut Plaintiff-Appellant's prima facie case and the lower court was simply mistaken that a plaintiffs presence within or outside of an unmarked crosswalk is always an issue for jury resolution. II. l)efendants-Respondents' remaining arguments regarding a pedestrian's duty of care in crossing the street are absurd. Despite the lower court's finding that Plaintiff-Appellant demonstrated her prima facie entitlement to summary judgment on liability, Defendants- Respondents continue to argue that Plaintiff-Appellant was obliged to yield the right of way to Defendant-Respondent's vehicle that was slowly approaching from 10 behind Defendants-Respondents' arguments attempting to attribute liability to Plaintiff-Appellant are absurd. VTL § l152(a) mandates that pedestrians "crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way . to all vehicles upon the roadway." (emphasis added). As discussed above in section I, the lower court correctly ruled that Plaintiff-Appellant satisfied her prima facie burden. With no evidence- beyond Defendants-Respondents' counsel's surmise-that Plaintiff-Appellant was outside the unmarked crosswalk, V1L § 1152(a) has no bearing here. Pedestrians like Plaintiff-Appellant, crossing at an intersection with the light in their favor, are under no obligation to keep a vigilant watch for and yield the right of way to turning vehicles approaching from behind them. On the other hand, drivers are obligated to operate their vehicles with reasonable care to avoid pedestrians on the roadway. See, e.g., Merrill v. State, 110 Misc.2d 260, 442 N.Y.S.2d 352, affd 89 A.D.2d 802, 453 N.Y.S.2d 383 (4th Dep't 1981). VTL § 1146(a) is controlling: "Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary." 11 A driver who fails to see a pedestrian walking within the crosswalk with the light in her favor is in violation ofVTL § 1146(a). See, e.g., Benedikt, 875 N.Y.S.2d at 527 (feigned issues of fact, where driver admits that he did not see the injured pedestrian, will not defeat a motion for summary judgment on liability). Defendants-Respondents also attempt to create an issue of fact as to whether "Plaintiff-Appellant, dressed in dark clothing, with an umbrella, was readily observable to [Defendant-Respondent]." (Opp. Br. at 26). Defendant-Respondent adds that it was ''pouring rain" at the time of the accident. (R. 17 4). First, pedestrians are protected by the VTL regardless of the color of their clothing. Second, Plaintiff-Appellant's umbrella was open and brown/tan-which should have only aided Defendant~Respondent in observing Plaintiff-Appellant crossing the street. (R. 94). Finally, it was not "pouring rain" at the time of the accident. By 6:53 a.m., rainfall that morning that had started an hour earlier totaled to less than one tenth of an inch-light rain by any standard.4 Lastly, there is the issue of where Plaintiff-Appellant was looking when she crossed the street. Both Plaintiff-Appellant and non-party witness David Cabrera testified that Plaintiff-Appellant looked both ways before crossing. (R. 99-104, 218). Plaintiff-Appellant then explains that she looked forward as she crossed 4 See http://www.wunderground.com/history/ (search zip code 11795 and date October 19, 2011). Historic weather data is subject to judicial notice. People v. Santiago, 64 A.D.2d 355, 409 N.Y.S.2d 716 (!st Dep't 1978). 12 l l ! i because a vehicle-the only vehicle that a reasonable pedestrian would focus on- was turning out of the hospital driveway and on to Montauk Highway. (R. 103- 04). Defendants-Respondents argue that Plaintiff-Appellant "failed to maintain a reasonable look out while crossing the roadway," (Opp. Br. at 34) but this argument suggests that Plaintiff-Appellant look somewhere other than left and right to observe if cars are respecting the' traffic light and then somewhere other than · forward when a vehicle was turning out of the hospital. Defendants- Respondents are arguing that a pedestrian cross the street and look over her shoulder because, Defendants-Respondents argue, one cannot expect a driver to notice a woman with a multi-colored umbrella crossing the street in an unmarked crosswalk at an offset intersection. Defendants-Respondents should bring their argument to the New York State Assembly, as their logic flies in the face of the V1L and common law of New York. CONCLUSION The lower court was correct in finding that Plaintiffs-Appellants established prima facie entitlement to summary judgment, but there is no evidentiary basis contained in the record to support a finding that Defendants-Respondents raised a triable issue of fact as to whether Plaintiff-Appellant was outside of the unmarked crosswalk .. Plaintiffs-Appellants respectfully request that this Court grant them partial summary judgment on the issue ofliability. 13 Dated; Rockville Centre, New York May 1, 2015 stin . Perri Justin B. Perri 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 14 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §670.10.3(f), the foregoing brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: Line spacing: 14 Double Word Count: 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 authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 3,222.