Susan M. Coffed, as Administrator of the Estate of James B. Coffed, Deceased, Appellant,v.John N. McCarthy et al., Respondents.BriefN.Y.March 23, 2017To be Argued by: NICOLE B. PALMERTON, ESQ. STATE OF NEW YORK Time Requested for Argument: (10 Minutes) ~upreme Qtnurt APPELLATE DIVISION-FOURTH JUDICIAL DEPARTMENT Appellate Division Docket Number: CA 14-01730. SUSAN M. COFFED, as Administrator of the Estate of JAMES B. COFFED, Plaintiff-Respondent, vs. ,JOHN N. McCARTHY, GASPERINO F. FULF ARO, Defendants-Appellants. Erie County Index No.: I-2013-242. REPLY BRIEF FOR DEFENDANTS-APPELLANTS JOHN N. McCARTHY and GASPERINO F. FlJLFARO NICOLE B. PALMERTON, ESQ. Of Counsel ADAMS, HANSON, REGO, KAPLAN & FISHBEIN Attorneys for Defendants-Appellants John N. McCarthy and Gasperino F. Fulfaro 20 Lawrence Bell Drive, Suite 300 Williamsville, New York 14221 Telephone: (716) 810-1320 BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768·2100 TABLE OF CONTENTS I. REPLY ARGUMENT ... . ................... . ............. .. .......... . . . 1 A. The cross walk argument is a red herring and is irrelevant ..... .. .. ... ...... 1 B. The turn signal was not a factor in this accident .......................... 2 C. Mr. Coffed failed to exercise due care and failed to exercise reasonable care to comply with the V & T law ............. .. . ..... ... ... 2 D. The white stopping line is the proper area to stop at a red light; and cross walks are located past the white stopping line . . . ....... . ......... 3 E. The only expert proof in the case concluded that the cyclist's failure to stop at the red light caused the fatal injuries ...... .... . ......... . 3 IL CONCLUSION .... ............................... .... ...... . .......... . 4 I. REPLY ARGUMENT The defendants-Appellants (Mr. McCarthy and Mr. Fulfaro) have submitted expert proof that the subject accident was not Mr. McCarthy's fault. The plaintiff-respondent, Ms. Co:ffed, did not submit contrary or opposing expert proof in opposition. Thus, as a matter of law, this matter must be dismissed. In addition, the arguments as submitted by Ms. Coffed fail to raise a material issue of fact that would preclude summary judgment and fails to meet her burden of proof which shifted to her upon the expert evidence in the record. A. The cross walk argument is a red herring and is irrelevant. Ms. Coffed argued in opposition that the accident happened in the cross-walk and thus this is an issue of fact in dispute that prevents summary judgment. This is speculation as it is not submitted as a fact in the case, but rather plain speculation. Ms. Coffed suggests we look at the final resting place of the bike, which was in the cross walk in the police photos, and conclude that the actual initial contact occurred in that exact spot. That is inadmissible speculation. There is no expert proof submitted that supports that conclusion. More importantly, the cross walk is irrelevant to this case. The bicyclist was not in the protected class of persons who would enjoy protection under the cited Vehicle and Traffic law provisions governing cross walks. Cross walks are for pedestrians. Bicyclists are obligated to follow the rules of the road for vehicles, just like cars. Cars cannot claim cross walk protection. Lastly, Ms. Coffed argues that it is possible that Mr.Coffed was going to take a left and thus could have been in the cross walk for that purpose. As noted above, the cross walk is 1 .. _ . ' irrelevant as to the cyclist. But in addition to that, the idea that the V & T law would allow a cyclist to race up to a traffic intersection and slam a left turn from the far right side of the intersecti9n across the cross walk and in front of moving traffic would seem an impossible stretch of the legislative intent. B. The tum signal was not a factor in this accident Ms. Coffed argues that the missing turn signal on one part of the subject truck is a fact that should preclude summary judgment. Again, this is speculation and insufficient to defeat the expert proof that directly addressed this issue. The police investigator specifically addressed the tum signal violation in the report. In his expert opinion, he states: "Only 393.9TS would have taken the dump truck out of service and none of these violations were factors in this collision". (R. 7 6) As Ms. Coffed has not submitted any contrary proof or expert opinion, then the suggestion that the missing turn signal could be a substantial factor in causing the injuries is without merit, and is insufficient to defeat a motion for summary judgment as a matter of law. C. Mr. Coffed failed to exercise due care and failed to exercise reasonable care to comply with the V & T law. The evidence is clear that Mr. Coffed was an experienced cyclist and is just as clear that he was familiar with the intersection, as the witnesses recalled seeing him in the past. Ms. Coffed argues that Mr. Coffed had a non-negligent reason for running the red light, or rather for failing to stop appropriately, and suggests it was due to the sun light and the size of the dump truck. In fact, Mr. Coff ed, as an experienced rider, would have known that the intersection he was 2 approaching was governed by a traffic light, and thus, his decision to continue on, while unable to see, was unreasonable. There is no law in this state that allows a driver who runs a red light the excuse that he could not see due to sun in his eyes. This is not considered an available exception to the V & T law. Thus, this is not a non-negligent reason for failing to stop at the red light. D. The white stopping line is the proper area to stop at a red light; and cross walks are located past the white stopping line. Ms. Coffed argues that the actual impact occurred in the cross walk. She then argues that the cyclist did not "run" the red light because he did not get all the way into the intersection. If the impact actually occurred in the cross walk, then the cyclist DID run the red, because the proper stopping location for vehicles and bikes is the white line, which is BEFORE the cross walk. So, if he advanced as far as the middle of the cross walk, then he passed the white stopping line, and thus constructively and as a matter of law, ran the red. E. The only expert proof in the case concluded that the cyclist's failure to stop at the red light caused the fatal injuries. As noted previously and herein, the police conducted a thorough accident reconstruction of this event. The only expert proof in the case determined that: Coffed did proceed through a solid red light and struck the dump truck who had the right of way. Despite Coffed's extraordinary safety measures and biking experience, his failure to stop ultimately caused his fatal injuries (R. 76). Ms. Coffed, in her responding brief and papers below, never addressed this simple 3 , conclusion. Therefore, as a matter of law, Mr. McCarthy and Mr. Fulfaro met their burden and Ms. Coffed has failed to submit evidence in opposition. IL CONCLUSION It is therefore respectfully submitted that the Order denying Mr. McCarthy's and Mr. Fulfaro 's motion for summary judgment be reversed and the complaint as against them be dismissed. DATED: Williamsville, New York November 11, 2014 ADAM.S,HANSO.~·~·~~~~~ FISHBEIN 4