Marie Castiglione, et al., Respondents,v.Robert Kruse, et al., Appellants.BriefN.Y.May 3, 2016BLACKSTONE LAW GROUP Via Overnight Delivery Mail New York State Court of Appeals 20 Eagle Street Albany, New York 12207 JUSTIN B. PERRI 167 Madison Avenue New York, New York 10016 P: (646) 931 0410 x 902 F: (212) 779 3070 justin@blackstone-Iaw.com February I2, 20 16 Attention: Chief Clerk of the Court, John P. Asiello, Esq. Re: Castiglione v. Kruse, 130 A.D.3d 957 (Second Department) APL-20 15-00325 LETTER-BRIEF FOR PLAINTIFFS-RESPONDENTS Dear Mr. Asiello: We represent plaintiffs-respondents Marie Castiglione ("Plaintiff- Respondent") and Frank Castiglione (collectively, "Plaintiffs-Respondents"), in the above-referenced matter. We respectfully submit these written comments and arguments in opposition to defendants-appellants' Karen Kruse ("Defendant- Appellant") and Robert Kruse's (collectively, "Defendants-Appellants") appeal from the July 29, 2015, Order issued by the Appellate Division Second Department', and respectfully urge the Court to affirm that decision based on the opinion contained therein. The Plaintiffs-Respondents do not object to the Court's consideration of this appeal pursuant to Rule 500.1 I of the Court's Rules of Practice. Plaintiffs-Respondents hereby expressly incorporate, by reference, the entire contents of their Appellants' Brief and Reply submitted to the Appellate I Castiglione v. Kruse, 130 A.D.3d 957 (2d Dep't 2015). Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 Division, Second Department, as well as the arguments contained within the lower court motion papers that are contained within the Record on Appeal which was before the Appellate Division, Second Department. See Rule 500.11 (f). Pursuant to your letter of January 5, 2016 and section 500.11, we hereby submit these written comments and arguments in letter form. We enclose herewith two copies of this letter submission and proof of service of one copy of these written comments on the opposing party. UNDERLYING FACTS On October 19, 20 I I, Plaintiff-Respondent Marie Castiglione parked her car on Keith Lane, just north of Montauk Highway, at approximately 6:40 a.m? Sunrise was not until 7:08 a.m., so it was still dark outside, but the street was well illuminated.3 It was also raining lightly.4 After parking her car, Mrs. Castiglione approached Montauk Highway and waited on the northeast corner of Montauk and Keith as the rush hour traffic passed by.s Her job at Good Samaritan Hospital, where she had worked for the previous twenty years, was just across the street.6 This had been Mrs. Castiglione's morning ritual for the previous seventeen years since moving approximately one mile north on Keith Lane.? For almost two decades she had, on over four thousand occasions,s parked her car near this location and walked safely across Montauk Highway to work.9 As of October 20 II, the crosswalk ran north-south on the east side of Montauk Highway; it was an unmarked crosswalk with a yield line marking where westbound cars must stop for red Iights. 'O The traffic signal changed, giving Mrs. Castiglione the right of way." She paused for a few seconds, observed that the traffic on Montauk Highway had 2 R. 83-84. 3 R. 233 at 8-13. 4 R. 213 at 14-18. See also http://www.wunderground.com/historyl (search zip code 11795 and date October 19, 20 I I). Historic weather data is subject to judicial notice. People v. Santiago, 64 AD.2d 355, 409 N.Y.S.2d 716 (I st Dep't 1978). 5 R. 93 at 13 through R. 98 at 15. 6 R. 80 7 R. 5 and R. 84 at 18-20. 8 Mrs. Castiglione worked five days per week. (R. 80 at 19-20). 9 R. 84. 10 R. 85 and R. 156 (the photograph at R. 156 depicts the yield line which runs from the northeast corner of the intersection towards Good Samaritan Hospital). II R.98. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 2 stopped, and began to cross the street at a "moderate" pace. 12 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. 13 She walked across the westbound lane, then the turning lane (for westbound drivers making a left turn into the hospital parking lot).14 She paused before crossing the double yellow line to again observe if any cars were coming. IS She was approximately halfway into the eastbound lane-three quarters of the way across the street-when she was struck on her right side by a Ford 500 driven by Defendant-Appellant Karen Kruse. 16 Mrs. Castiglione suffered fractures of her right foot and right knee, torn ligaments and tendons in her right foot, right elbow, and right shoulder. l ? As a result, she was unable to return to work after the accident. ls 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 months, the inability to walk without crutches, and physical therapy.19 Mrs. Castiglione has since been on a pain management regimen and remained confined to her home for several months after the accident.20 Mrs. Kruse, the driver of the Ford 500, was also on her way to work on the morning of October 19, 20 I 1.21 She was heading south on Keith Lane until she reached a red light at Montauk Highway.22 She testified that she waited for the light to change, made a left turn heading eastbound, and suddenly felt "as if somebody threw a gigantic boulder at the car.'023 She pulled over immediately and realized that "it was a person."24 Mrs. Kruse testified that she was only driving five or six miles per hour when she made the left turn and struck Mrs. Castiglione.2s Mrs. Kruse exited her vehicle to check on Mrs. Castiglione.26 Mrs. Kruse noticed a man get out of his car on the westbound side of Montauk 12 R. 99, 103, 105, 217, and 237. 13 R. 103-04. 14 R. 106-08. 15 R. 106-08, 234. 16 R. 108-10,240. 17 R. 40, 49, and 59. 18 R. 80. 19R.42,61,130-41. 20 & 21 R. 176. 22 R. 182-85. 23 R. 192 at 18-19. 24 R. 192 at 24-25. 25 R. 193 at 3. 26R.194. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 3 Highway?7 The man approached and yelled at her saying "What the hell, didn't you see her?,,28 Mrs. Kruse waited with Mrs. Castiglione until the police arrived?9 In her signed police statement, Mrs. Kruse wrote that "a pedestrian ... had been hit,,,3o after she was "blinded by bright lights"31 from oncoming traffic, but by the time her deposition was taken almost one year later, she had convinced herself32 that "a pedestrian ran into [her] car.,,33 The police report indicated that the "apparent contributing factor[s]" were "driver inattention/distraction" as well as the driver's "failure to yield right-of- way.,,34 The police report also indicated that the vehicle was on an angle upon impact.35 Though there was a code for it on the police report, the officer did not list "pedestrian error/confusion" as a contributing factor to the accident.36 Mrs. Castiglione never saw Mrs. Kruse's car coming from behind;37 Mrs. Kruse never saw Mrs. Castiglione crossing in front of her vehicle.38 One witness watched the accident unfold: David Cabrera, the disinterested witness who yelled at Mrs. Kruse, was stopped in his vehicle on the east side of the intersection.39 He was heading west to his job.40 Mr. Cabrera testified that Mrs. Castiglione waited "two seconds, three seconds" after the light changed before she began to cross.41 He testified that Mrs. Castiglione looked and "made sure the cars were stopping"42 as she crossed directly in front of his car "at the lined crosswalk.,,43 Then he watched as Mrs. Kruse "made a quick turn ... at a high rate of speed."44 Mr. Cabrera estimated that Mrs. Kruse was travelling at "20 miles per hour" when her vehicle struck Mrs. Castiglione.45 27 R. 195. 28 R. 196 at 2-3. 29 R. 196. 30 R. 242. 31 Id. 32 Mrs. Kruse testified that she "believe[d] that's what happened." R. 201 at 13. 33 R. 20 I. 34 R. 240 and 243. 35 kh 36 kh 37 R. 104. 38 R. 191-92. 39 R. 211. 40 R. 212. 41 R. 217 at 11-12. 42 R. 217 at 16. 43 R. 237. 44 R. 219. 45 R. 220 at 7. Letter Brief on behalf of Plaintiffs-Respondents 4 Castiglione v. Kruse, APL-20 15-00325 DECISIONS BELOW In December 2013, Plaintiffs-Respondents moved for partial summary judgment on the issue of liability.46 Defendants-Appellants cross-moved for summary judgment dismissing the complaint.47 Plaintiffs-Respondents argued that Mrs. Kruse "was negligent and breached her duty by violating Vehicle and Traffic Law (the 'VTL') §§ I I I 1(a)(3) and I 146 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.,,48 Defendants-Appellants argued that "plaintiff failed to use due 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 law, from any liability for the accident.,,49 justice Mayer found that "plaintiffs established their prima facie entitlement to summary judgment on the issue of liability," but, taking a Solomonic approach, the lower court denied both summary judgment motions.so justice Mayer's sole justification for denying Plaintiffs-Respondents' summary judgment was based on a 1987 decision out of the Third Department.sl 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."s2 On july 29, 2015, the Second Department reversed the lower court, agreeing with the trial court that "plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability," but also finding that "defendants' unsupported speculation that the injured plaintiff was comparatively at fault was insufficient to raise a triable issue of fact." Castiglione, 130 A.D.3d at 957-58 (emphasis added). The Second Department then declined to consider the remainder of Defendants-Appellants' arguments as they were "raised for the first time on appeal." k!... at 960. This last point is vital because it moots Defendants-Appellants' first two arguments in this appeal. The former point-that Defendants-Appellants' preserved arguments were rejected by the Second Department as "unsupported speculation" is the basis for rejecting 46 R. 3. 47 R. 3. 48 R. 4. 49 R. 4. 50 R. 5-6. 51 R.6. 52 R. 6. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 5 Defendants-Appellants' only properly presented argument on this appeal-that Plaintiff-Respondent was somehow engaged in "self-inflicted mayhem." Justice Dillon was the lone dissenter on the Second Department panel. His dissent was based on his own factual findings that were diametrically opposed to those of the majority and the lower court. Justice Dillon claimed that the majority had misapprehended "four separate factual aspects of the case that raise issues of comparative negligence:" (I) the direction of travel of defendants' vehicle; (2) where the injured plaintiff was looking at relevant times; (3) the angle at which defendants' vehicle hit plaintiff; and (4) the point of impact on the vehicle. COUNTERSTATEMENT OF QUESTIONS PRESENTED I) Is an argument that was never made at the trial court preserved for appellate review? The Second Department correctly answered "no." 2) Is a pedestrian who-(a) has the right of way, (b) has taken every precaution required by the law before entering the crosswalk, (c) has almost finished crossing the street, (d) testifies to looking ahead rather than turning around nearly 180 degrees to look behind her right shoulder while crossing, and (e) is hit by a vehicle approaching from behind-engaged in "self-inflicted mayhem" as that concept is defined by New York courts? The Second Department correctly answered "no." SUMMARY OF ARGUMENT After addressing the third argument presented by this appeal-whether Plaintiff-Respondent ignored her duty to maintain a "proper lookout" while crossing (addressed infra at Section II)-the majority opinion casually dispatched Defendants-Appellants' first two arguments at the conclusion of its opinion: "The defendants' remaining contention is raised for the first time on appeal and, therefore, is not properly before this Court." Castiglione v. Kruse, 130 A.D.3d 957, 960 (2d Dep't 2015) (citing Pineda v. Elias, 125 A.D.3d 738, 739, 4 N.Y.S.3d 100 (2d Dep't 2015)). Plaintiffs-Respondents respectfully request that this Court follow suit and decline to consider these arguments (Defendants-Appellants' Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse. APL-20 15-00325 6 arguments I and II at pp.7-12) that were not preserved for appeal. See infra at Section I. The importance of casting these arguments aside cannot be stressed enough, as they form the false premise upon which Defendants-Appellants' third argument rests. Defendants-Appellants know this and have ordered their arguments this way with the hope that this Court will allow their first two arguments to stand. But once these arguments are cast aside as untimely, the rest of this appeal falls like a house of cards. That is because Defendants-Appellants' third argument-that Plaintiff-Appellant was contributorily negligent-is entirely dependent on the false premise created by the first two arguments: i.e., Plaintiff- Appellant should have seen the vehicle and was contributorily negligent because the vehicle was in her peripheral view. But this is pure fantasy. By all accounts, except the account of Defendants-Appellants' counsel, the vehicle hit Plaintiff- Appellant on an angle, as it was executing its turn, and approaching from behind Plaintiff-Appellant. ARGUMENT I. Defendants-Appellants' first and second arguments-raised for the first time on appeal-are not properly before this Court and are not supported by the record. Defendants-Appellants managed to deceive the trial court with their argument that a pedestrian alleging to have crossed the street within an unmarked crosswalk cannot possibly win summary judgment on liability. But they were not willing to double-down on this argument. They shifted their approach at the Second Department and argued, for the first time on appeal, that there was conflicting testimony over whether Plaintiff-Respondent was crossing somewhere other than the 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 trial court and, therefore, is not properly before this Court. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 7 A. Defendants-Appellants' first two arguments, raised for the first time at the Second Department, are not properly before this Court. Defendants-Appellants' first two of three arguments were never raised by Defendants-Appellants before the trial judge and, as such, were not properly before the appellate division and rejected. Castiglione, 130 A.D.3d at 960 ("The defendants' remaining contention is raised for the first time on appeal and, therefore, is not properly before this Court.") (citing Pineda, 125 A.D.3d at 739). I. Defendants-Appellants' arguments before the trial judge Defendants-Appellants' unequivocally argued before the trial judge 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 .ill of Defendants-Appellants' 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, 20 I I, 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 ~5) (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 ~14) (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 ~5) (emphasis added). The excerpts above constitute all of Defendants-Appellants' arguments on record on the issue of where Plaintiff-Respondent crossed the street on the Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 8 morning in question. These excerpts clearly demonstrate that Defendants- Appellants' arguments to the lower court revolved around the false assumption (later conceded by Defendants-Appellants at the Second Department) 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-Appellants otherwise did not take issue with where Plaintiff-Respondent crossed, but with how she crossed, which is addressed below in section II and more fully in the Brief for Plaintiffs-Respondents before the Second Department. 2. Defendants-Appellants' untimely approach Defendants-Appellants argued at the trial court that Plaintiff-Respondent was not in the "designated crosswalk"-a term used by counsel for Defendants- Appellants to describe the marked crosswalk located to the west of Keith Lane, running across Montauk Highway. Defendants-Appellants failed to raise the issue of whether Plaintiff-Respondent was within or outside of the unmarked crosswalk on the east side of that intersection because Defendants-Appellants were committed to their argument that an unmarked crosswalk was not a crosswalk at all. In the face of contrary authority raised by Plaintiffs-Respondents, Defendants-Appellants shifted their approach at the appellate division, claiming that Plaintiff-Respondent was outside of the unmarked crosswalk, which forced them to raise a new argument that they are now improperly presenting to this Court: that there is conflicting testimony over where Plaintiff-Respondent crossed. This argument was rejected as not properly before the Second Department and it is certainly not properly before this Court. See Pineda, supra, 125 A.D.3d at 739; see also Angel Fabrics Ltd. v. Cravat Pierre, Ltd., 5 I A.D.2d 95 I, 381 N.Y.S.2d 497 (I st 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 and the Second Department's affirming that Plaintiffs-Respondents satisfied their prima facie burden. See infra, section LB. The common thread among Defendants-Appellants' arguments-which did not go unnoticed at the Second Department-is that the "conflicting testimony" raised by Defendants-Appellants is a mirage created by the testimony of Defendants-Appellants' counsel in the form of "unsupported speculation" that Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 9 (I) Plaintiff-Respondent was outside of the crosswalk; (2) Plaintiff-Respondent's vehicle had somehow straightened out prior to impact; (3) third-party witness Cabrera could not have made out Plaintiff-Respondent's smile from the distance that would place her in the crosswalk; and, most importantly, (4) Plaintiff- Respondent contributed to bringing this injury on herself. The sum and substance of Defendants-Appellants' entire appeal is unlike any of the cases they cite where record evidence leads to issues of fact. Bald theories raised by an attorney cannot rebut a prima facie case; these assertions were understandably rejected by the majority below. See Grand Pac. Fin. Corp. v. 97-1 I I Hale, LLC, 123 A.D.3d 764, 768 (2d Dep't 2014) ("In opposition to [plaintiff]'s prima facie showing of entitlement to judgment as a matter of law striking those affirmative defenses, the [] defendants did not substantiate those conclusory affirmative defenses with factual allegations") (citing, inter alia, CPLR 3013). B. Defendants-Appellants' arguments are not only untimely, they are also unsupported by the record. Defendants-Appellants, by sleight of hand, attempt to place Plaintiff- Respondent away from "the physical corner when the impact occurred." See Defs.-Appellants' Letter Brief at 8 (citing R. I II). Assuming counsel means to argue that Plaintiff-Appellant was not crossing from the "physical corner," this Court must be made aware of the testimony that Defendants-Appellants are relying on: Q I'm going to hand you once again Defendant's Exhibit A. Is it shown anywhere in that photograph where the exact point of the 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 side. Q But you can't tell me exactly where? MR. LANGELLA: By using that photograph, she said, "No." Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse. APL-20 15-00325 10 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? 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 know, you can say you don't know. A: I don't know. MR. LANGELLA: You don't know from looking at this photograph? Is that your answer, by using this photograph, you don't know? Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 II THE WITNESS: I can say it's here, but you can't see the lane (indicating). MR. LANG ELLA: 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. LANG ELLA: No, because it's an unfair -- you have photographs that show that lane. 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. I 10-13) (emphases added). So, in reality, the witness (Plaintiff-Respondent) expressed her confusion about the question as it was asked by Defendants- Appellants' 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-Appellant's vehicle was depicted on the photograph. Defendants- Appellants' attempt to cast doubt on the credibility of Plaintiff-Respondent's prima facie case by claiming that "[Castiglione] indicated [the impact] was more left than what the photograph showed[,]" (Defs.-Appellants' Appellate Division Opp. Br. at 9) (citing R. I I I) was both improper and assumed that neither Plaintiffs- Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 12 Respondents nor the Second Department will bother to read the pages of the transcript excerpted above. The Second Department was not fooled. Any other allegations of inconsistent testimony constitute feigned issues of fact that cannot defeat a prima facie case for summary judgment, as Defendant- Appellant did not observe Plaintiff-Respondent 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-Respondent crossed some ten to fifteen feet from the cornerS3 is also belied by the police report as well as Defendant-Appellant's own testimony. The police report indicates that Plaintiff-Respondent was stricken while Defendant-Appellant's car was in the process of making a left turn. (R. 240). Defendant-Appellant similarly states that she struck Plaintiff-Respondent while her vehicle was on an angle, in the process of completing her turn when she felt the impact to the driver's side of her vehicle. (R. 198). This is disputed by justice Dillon's dissent, but conceded by Defendant-Appellants' Statement of Facts. Compare 130 A.D.3d at 961 (Dillon, j., dissenting) with Defs.-Appellants' Letter Brief at 6. justice Dillon's dissent also argues that: "Photographs of the intersection that ~re in the record irrefutably demonstrate that the intersection is more of a three-way intersection with Keith Lane, from which the defendant driver turned, being several yards to the west of the other three entry points. The photographs, which are as much a part of the record as any party's deposition testimony, demonstrate that the defendant driver necessarily completed or virtually completed her left turn from Keith Lane and traveled through the three-way portion of the intersection in order to then reach the unmarked crosswalk where the injured plaintiff was walking." 130 A.D.3d at 961 (Dillon, j., dissenting). The photographs that justice Dillon refers to in his dissent can be found at R. 156-160. First, it is unfathomable that the above determinations were made based on these photographs, which are the only representations on record of what the intersection of Montauk and Keith looked like in October 201 I. Second, justice Dillon's unwarranted assumptions 53 Defendants-Appellants cite Lopez v. Beltre, 59 A.D.3d 683 (2d Dep't 2009) in support of their argument that Plaintiff-Respondent was somewhere other than an unmarked crosswalk. (Defs.- Appellants' Appellate Division Opp. Br. at 22). Lopez in inapposite as plaintiff in that case was some "20 feet south of [the crosswalk]." 59 A.D.3d at 685. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 13 based on the photographs are completely at odds with the testimony of all three of the deposed witnesses, including the testimony of Defendant-Appellant as well as the police report (R. 240-243). Even assuming, arguendo, that Justice Dillon's account of the accident is accurate, a car that has "virtually completed" its turn is still in the process of turning, consequently it is not approaching from the pedestrian's side and cannot possibly be noticed by a reasonably watchful pedestrian until it is too late to avert the hazard that the vehicle presents. So Plaintiff-Respondent could not possibly have been ten to fifteen feet from the corner, or, for that matter, "more left than what the photograph [at R. 156] showed." Save the speculative arguments made by Defendant-Appellant's counsel, there is no testimony in the record placing Plaintiff-Respondent outside of the unmarked crosswalk. Defendant-Appellant 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. Defendants-Appellants' argument also hypothesizes-with no evidentiary basis whatsoever-that Plaintiff-Respondent was not on "the corner," as if this constitutes one square foot of space. Defendants-Appellants' new argument in this regard is that non-party witness Cabrera was stopped before the stop line and he noticed her smile, therefore Plaintiff-Respondent must have crossed near his vehicle and therefore outside of the unmarked crosswalk. First, non-party witness Cabrera never testified that he stopped just before the stop line-to argue that he did is na·lve, desperate, and, most importantly, an assumption that is unsupported by the record. Second, setting aside the unavoidable fact that this issue of precise positioning was never raised at the trial level, there can be no doubt that when Plaintiff-Respondent, at her deposition, placed herself on "the corner," she was talking about an expansive area that runs from one side of the corner to the other, bordered on both sides by stop lines for traffic. Even accepting all of Defendants-Appellants' unfounded conjecture as true, it remains that a crosswalk is six feet wide, giving pedestrians space while walking from one corner to the other-pedestrians are not required to cross the street on a tightrope. Finally, Defendants-Respondents' attempt to put at issue the non-party witness's ability to see facial Plaintiff-Respondent's facial expressions is an encapsulation of Defendants-Respondents' entire appeal: it is just another heavy- handed serving of non-record attorney speculation. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 14 The three-judge majority easily dismissed Justice Dillon's (the dissenter's) and Defendants-Respondents' spin on the facts: "the dissent's version of the facts does not comport with the defendant driver's sworn statement on the day of the incident in which she stated that she 'started to make [her] left turn and felt an impact,' and the defendant driver's deposition testimony that when the impact with the injured plaintiff occurred, her vehicle had not yet completed the turn. The dissent's determination that the defendant driver had already completed the turn at the point of impact also does not comport with the police accident report, which indicates that the injured plaintiff was struck by the driver side door of a vehicle at an angle approaching from behind and to the right of the injured plaintiff, or the affidavit of the nonparty witness who also indicated that the defendant driver's vehicle was making a left turn when it struck the injured plaintiff. The dissent's contrary assumption that the turn made by the defendant driver was a sharp left made perpendicular to the road into which she was turning is therefore not supported by the record." Castiglione, 130 A.D.3d at 160 (emphases added). Justice Dillon's first error was to entertain Defendants-Appellants' unpreserved arguments. His second error was to accept Defendants-Appellants' theories in substitution for the facts in the record. This approach, ignoring inherent principles of argument preservation as well as the record, was roundly rejected by the majority. II. As determined by the trial court and the Second Department, Plaintiffs-Respondents demonstrated their prima facie case; that prima facie showing was unrebutted by record evidence indicating that her manner of crossing could possibly be considered "self-inflicted mayhem." A. The record is devoid of evidence even suggesting that Plaintiff-Respondent was negligent. Pedestrians in the State of New York are governed by one standard before entering a crosswalk and an entirely different standard once they have entered the crosswalk with the right of way. First, a pedestrian must observe whether traffic is approaching before entering the crosswalk. See, U, Garcia v. Lenox Hill Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 IS Florist III, Inc., 120 A.D.3d 1296, 993 N.Y.S.2d 86, 88 (2d Dep't 2014); Hamilton v. King Tung Kong, 93 A.D.3d 821, 940 N.Y.S.2d 90 I, 90 I (2d Dep't 2012) (plaintiff "looked for approaching traffic before he began to cross") (emphasis added). After entering the crosswalk with the right of way, a pedestrian must then be mindful of hazardous conditions that are readily observable by the reasonable use of her senses. See Popek v. State, 279 A.D.2d 622, 622, 719 N.Y.S.2d 708, 708 (2d Dep't 200 I). It is the second part of the standard that is germane to this appeal. Defendants-Appellants' primary failing-adopted by Justice Dillon in his dissent-is the continued application of the first standard to the second situation, citing a score of cases (including Thoma) where the record made it clear that the pedestrian-plaintiffs were completely oblivious to hazardous conditions prior to entering the street and failed to look to both sides as Plaintiff- Respondent in the instant matter did. Defendants-Appellants' own brief cites language that clinches the liability determination in Plaintiffs-Respondents' favor: "[t]he right of way is not a right to self-inflicted mayhem for which the defendant can be held liable, and one cannot, to the exclusion of everyone and everything around him, rely solely upon his right of way;" See Schmidt v. S. M. Flickinger Co., 88 A.D.2d 1068, 1069, 452 N.Y.S.2d 767 (3d Dep't 1982) (emphasis added). In determining what constitutes "self- inflicted mayhem," courts examine whether non-movant drivers carried their CPLR 1412 burden of presenting evidence of a "readily observable hazardous condition" and evidence that Plaintiff-Respondent should have noticed that condition. See Tselebis v. Ryder Truck Rental, Inc., 72 A.D.3d 198, 895 N.Y.S.2d 389 (I st Dep't 20 I0) (contributory negligence is an affirmative defense to be pleaded and proved by the party asserting it; speculative assertions of a failure to use reasonable care will not defeat summary judgment). Defendants-Appellants did not even attempt to carry this burden with record evidence before the trial court. See supra section I. Noticeably absent from Defendants-Appellants' Letter Brief is some rational suggestion of what Plaintiff-Respondent should have or even could have done differently to avoid this accident. Defendants-Appellants suggest that Plaintiff-Respondent could have "checked to her right," (Defs.-Appellants' Letter Brief at 15) but that presupposes as fact the same "unsupported speculation" that the Second Department refused to consider: that Defendant-Appellant's car was approaching from the right, rather than from behind. The facts are the facts and we are confined to the record, which does not incorporate Defendants- Appellants' counsels' unsupported theories. What Defendants-Appellants will not Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 16 suggest-as it is fatal to their appeal-is that Plaintiff-Respondent should have taken her attention away from the traffic that was in front of her in favor of the car that was approaching from behind. Defendants-Appellants realize that without their absurd untimely theories posited in arguments I and II, their fate is sealed on liability. The Plaintiff-Appellant who lived on the other end of Keith Lane, worked at the hospital for twenty (20) years, and crossed in the same manner for many years could not and should not have done anything different on that day. justice Dillon's dissent also misses the thrust of the majority's argument: the direction of the approaching car is inextricably intertwined with the expectation that courts will place on a pedestrian when determining if a hazardous condition was "readily observable." justice Dillon demonstrates his confusion on this issue towards the end of his dissent: "the majority misconstrues Thoma, Yi Min Feng. and Lopez, as those cases were not determined by the direction of the cars involved but by the plaintiffs' failures to be aware of their surroundings on trafficked roadways." 130 A.D.3d at 963 (Dillon, j., dissenting). It is justice Dillon who misconstrues the majority opinion, as the majority has found that under these circumstances, the direction of the approaching vehicle is determinative as to whether a pedestrian failed to be aware of his or her surroundings. Finally, this Court's holding in Thoma-seemingly the basis of Defendants- Respondents' third argument-is six sentences long. Thoma v. Ronai, 82 N.Y.2d 736 (1993). The Court of Appeals' opinion, on its own, does little other than to affirm the First Department's ruling. That appellate division's ruling in Thoma found that a pedestrian could be negligent where she (a) was crossing a busy city street; (b) was hit by defendant-driver's van which "came from in front of the plaintiff, not behind her;" and (c) "failed to look at all." Castiglione. 130 A.D.3d at 959 (citing Thoma). These distinctions were never addressed by justice Dillon and have not been addressed by Defendants-Appellants in their Letter Brief even though they were at the core of the majority's decision to distinguish the facts in this case from those in Thoma. The idea that there is somehow now a split among the departments is absurd; for good reason this is only suggested in passing in Defendants-Respondents' Letter Brief. See Defs.-Appellants' Letter Brief at 16. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 17 B. A four-judge panel of the Second Department has further cemented Castiglione as instructive on this issue. The recent decision in Chou v. Ocean Ambulette Serv., Inc., unanimously decided by one justice from the Castiglione panel and three different Second Department justices, confirms that being blindsided by a vehicle approaching from behind is a factor that may be determinative in granting summary judgment to a pedestrian-plaintiff under these circumstances. 131 A.D.3d 1091, 16 N.Y.S.3d 593 (2d Dep't 2015). To say otherwise and to adopt the flawed reasoning of Defendants-Respondents and justice Dillon's dissent would mandate a denial of summary judgment on liability to any pedestrian crossing with the right of way within a crosswalk simply because counsel for defendant-driver affirms that the plaintiff-pedestrian could have been more perceptive. This is not and has never been the law of the State of New York. It is important to note that the Castiglione majority limited its finding to the "circumstances of this case." 130 A.D.3d at 960. justice Dillon expresses his concerns that "[t]he majority also makes new law that pedestrians need not concern themselves with vehicles that make turns into intersections, so long as the vehicles initially originate from the rear of four potential entry points." 130 A.D.3d at 963 (Dillon, j., dissenting). But there is nothing new about the majority's concept. To the contrary, "new law" would be to impose an expectation of omniscience on pedestrians. The Castiglione majority has clarified the obvious. It has long been the law of the State of New York that: pedestrians who cross within the crosswalk with the right of way are under an obligation to be mindful of hazardous conditions that are readily observable by the reasonable use of their senses. Those "hazardous conditions" that should be noticed- according the majority and a more recent Second Department panel-do not include a car that is coming from a direction that would force the pedestrian to walk backwards while crossing the street and take their attention away from the approximately 180 degrees that is within a forward-looking pedestrian's peripheral vision. The offset intersection in this particular case would literally require a pedestrian to turn their entire body to view the part of the intersection where Kruse approached from. To demand that pedestrians be mindful of conditions approaching from anywhere within 360 degrees is demanding that they expose themselves to actual self-inflicted mayhem. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse, APL-20 15-00325 18 CONCLUSION We respectfully submit that for the reasons stated herein, and upon the Appellate Division briefs and Appendix, and as elucidated and discussed by the majority justices of the Appellate Division Second Department, we respectfully request that the order of the Appellate Division appealed from should be affirmed. Respectfully submitted, BLACKSTONE LAw GROUP LLP stin B. Perri Alexander J. Urbelis 167 Madison Avenue, Suite 202 New York, New York 10016 Phone: (646) 931-0410 Appellate Counsel for Plaintiffs- Respondents Marie Castiglione and Frank Castiglione Michael S. Lagella MICHAEL S. LAGELLA, P.C. 888 Veterans Memorial Highway Hauppauge, New York I 1788 Phone: (631) 285-7500 Trial Counsel for Plaintiffs-Respondents Marie Castiglione and Frank Castiglione cc: PICCIANO & SCAHILL, P.C. Attorneys for: Defendants-Appellants Robert Kruse and Karen Kruse 900 Merchants Concourse, Suite 310 Westbury, New York 11590-5114 Attn: Andrea E. Ferrucci, Esq. Letter Brief on behalf of Plaintiffs-Respondents Castiglione v. Kruse. APL-20 15-00325 19