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 ArgiJed by: NICOLE B. PALMERTON, ESQ. STATE OF NEW YORK Time Requested for Argument: (10 Minutes) ~uprcmc Qtnurt APPELLATE DIVISION- FOURTH JUDICIAL DEPARTMENT - - -o,___ __ SUSAN M. COFFED, as Administrator of the Estate of JAMES B. COFFED, vs. JOHN N. McCARTHY, GASPERINO F. FULFARO, Plaintiff Respondent, Defendants-Appellants. Erie County Index No.: I-2013-242. BRIEF FOR DEFENDANTS-APPELLANTS JOHN N. McCARTHY and GASPERINO F. FULFARO NICOLE B. PALMERTON, ESQ. Of Counsel ADAMS, HANSON, REGO, KAPLAN & FISHBEIN Attorneys for Defendants-Appellants JohnN 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 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. PRELIMINARY STATEMENT . . . ... . . ... . . .. .. .. . . ... . ... . .. ..... . ...... . 1 II. QUESTIONS PRESENTED .... . . . .... . . . . . .. .. .. ...... .... . . .. . . . . . . ... . . 1 ill. STATEMENT OF FACTS . . . .. ... ..... .. . . . .. . .. ...... . .. .. . .. . . ....... . . 1 N. ARGUMENT ..... . .. .. .. ... . ...... . ....... . .. ... . ........ .. .. . . .. . . . .. 4 A. Mr. Coffed was negligent as a matter oflaw .... . .... .. . ...... . ..... ... .. 4 B. Mr. Coffed's negligence was the proximate cause of the accident . . ... . .. . . . . 5 C. There can be no finding of negligence on behalf of Mr. McCarthy . . . . . . . . .... 6 D. Plaintiff's Counsel's Opposition to the summary judgment motion was insufficient to establish a material issue of fact in dispute so as to be grounds for denying the motion .... . ..... ........ ........ ... . .. 7 E. All of the evidence supports a finding in favor of the defendants/appellants, Messrs. McCarthy and Fulfaro . .. ........ ... .. ... . . 8 V. CONCLUSION ...... . . .... . .. .. . .. . .. ... . . ...... . ..... . ... .. .. . ...... . 11 TABLE OF AUTHORITIES Page(s) CASES: Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 (4th Dept. 2001) ........................ . .. 10 Holleman v. Miner, 267 A.D.2d 867, 699 N.Y.S.2d 840 (2nd Dept. 1996) ....... . .. . ............. . . . 4 Koziol v. Wright, 26 A.D.3d 793; 809 N.Y.S.2d 350 (4th Dept. 2006) ............................. 4 Shapiro v. Munoz 28 A.D.3d 638, 813 N.Y.S.2d 755 (2nd Dept. 2006) . . .......................... 8 Trzepacz v. Jara, 11A.D.3d531, 782 N.Y.S.2d 852 (2nd Dept. 2004) ............................ 9 OTHER AUTHORITIES: Vehicle and Traffic Law §11 lO(a) .. ..... ...... ..... . · . . ... ...... . . ............. .... 5 Vehicle and Traffic Law § 1111 ( d) ..... . ............................ .... .......... . 5 ,. Vehicle and Traffic Law §1231 .................... ... ..................... .... ... 4 -11- I. PRELIMINARY STATEMENT This is an appeal from an Order of the Supreme Court, Niagara County (Hon. Henry J Nowak, J.S.C.) entered June 18, 2014, denying the motion of Mr. McCarthy's and Mr. Fulfaro's motion for Summary Judgment seeking a dismissal of the complaint based upon negligence and proximate cause. II. QUESTIONS PRESENTED Q: Did the court below err when it denied the defendants' motion for summary judgment, determining that there was an issue of fact regarding negligence and proximate cause? A: Yes. III. STATEMENT OF FACTS This personal injury action arises out of a car accident involving an adult bicyclist and a dump truck. The plaintiff, Mr. Coffed was riding his bicycle along Walden Avenue when he failed to adhere to Vehicle & Traffic Laws and did not stop at the red light behind the dump truck. Instead, the bicyclist continued on the right shoulder of the road, past the dump truck's right turning signal, with his head down, and plowed into the side of the right hand turning dump truck, ultimately leading to his death. (The dump truck was owned by Mr. Fu/faro, and driven by Mr. McCarthy, an experienced commercial driver.) The record contains the expert report and conclusions of the Lancaster police, -1- ' • which determined: CONCLUSION: Based on collected date, statements and available evidence, the investigators of this collision have determined that this incident was simply a tragic accident. Investigators have found no criminal culpability on the part of McCarthy. It is believed that a combination of sun glare, the dump truck's height and the bicyclist's geographical position relative to the dump truck prevented Coffed from observing the red light for Eastbound traffic on Walden Avenue. 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). The above findings are sufficient to have granted the Summary Judgment motion, as no opposing expert proof was submitted at the motion level. Additionally, the only opposition to the motion contained misleading and irrelevant suggestion and pure speculation. The record reflects that Mr. McCarthy was the second dump truck in a convoy traveling down Walden Avenue, behind Mr. Fulfaro, and in front of witness Mr. Tubbs. The Fulfaro truck came to the green light at the intersection of Sheldon Avenue, put on his signal, and turned right. Mr. McCarthy, who was instructed to follow Mr. Fulfaro, approached the intersection and came to a stop behind the turning Fulfaro truck. He was --about-a.-100 feetfrom-theintersection-. ------- Mr. McCarthy put his right blinker on and crept up to the intersection, as the light then turned red. As he sat there completely stopped, he looked for crossing traffic, consulted his mirrors, looked left and right and started to make his right hand tum. He suddenly felt a slight impact and immediately stopped and exited the truck. It was then that he saw the decedent and the bicycle. -2- Mr. McCarthy testified to the above facts, facts which have not been disputed by any source. He explained in great detail how the day began, how he was told to follow the boss down Walden Ave to the next job site, how he saw the bicyclist on Walden, changed lanes to go around him and how he approached the turn at Sheldon. He looked in his mirrors, and did not see the bicyclist. He indicated his tum, he put the big truck in gear and started his tum. (R. 106-127) There is no evidence that anything he did in that sequence constitutes an unreasonable act. There is independent corroboration of these facts, as testified to upon Affidavit (Jason Tubbs) (R. 52-53) and live testimony from the DMV Fatality hearing (Julie Steele) (R. 43-51 ). The police noted that the dump truck's turn signal was still when they observed it. The police interviewed witnesses, reviewed the weather conditions, inspected the truck and found that the cause of the accident was the bicyclist's failure to stop at the red light. It was suspected that the rising sun may have contributed as well, but nevertheless, they could find no acts of fault by Mr. McCarthy. Regardless, the lower court denied the summary judgment motion on the argument by Mr. Coffed's counsel that there were issues of fact because the bicycle was found, post accident, in the cross walk (although if was the wrong crosswalk), and because Mr. McCarthy (who was so upset while giving his statement to the police that he vomited, which was noted by the original officer) said the light was green when first asked at the scene. No expert proof was submitted to refute the findings of the police that "driver inexperience and/or error has been ruled out in this collision" (R. 75). All witnesses' accounts confirm that the bicyclist did not stop for the red light and further confirm he -3- was looking down as he entered the intersection next to the dump truck. By Order granted June 17 and entered June 18, 2014, the Court below (Hon. Hemy J Nowak, J.S.C.) denied Messrs. McCarthy's and Fulfaro's Motion for Summary Judgment on the issue of negligence and proximate cause, seeking a dismissal of the Complaint. It is from this Order that Messrs. McCarthy and Fulfaro make this Appeal. A Notice of Appeal was timing filed on July 12, 2014. IV. ARGUMENT A. Mr. Coffed was negligent as a matter of law. It is well-settled that an unexcused violation of the Vehicle and Traffic Law constitutes negligence per se when said violation is the proximate cause of the accident. -Koziol-v:-Wright,-26-A:D~3d-993;-809-N:Y:S:-2d 3-50 (4th Dept.-2006) citing, Holleman-v. Miner, 267 A.D.2d 867, 699 N.Y.S.2d 840 (2nd Dept. 1996). In the present case, it was the plaintiff, Mr. Coffed who violated multiple Vehicle and Traffic Laws when he failed to stop at the white line for the red light, thus causing this accident. Had Mr. Coffed stopped at the white line at the red light, as was his duty as a bicyclist-on the roadway;-this accident would never-have-happened. - Vehicle and Traffic Law §1231 provides: Traffic laws apply to persons riding bicycles or skating or gliding on in-line skates. Every person riding a bicycle or skating or gliding on in-line skates upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by -4- .. their nature can have no application. (Emphasis added) Vehicle and Traffic Law §11 IO(a) prnvides: Every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter .... (Emphasis added) Vehicle and Traffic Law §llll(d) provides as follows: 1. Traffic, except pedestrians, facing a steady circular red signal, unless to make such other movement as is permitted by other indications shown at the same time, shall stop at a clearly marked stop line .... (Emphasis added) Thus, it is the law of this state that a bicyclist who approaches a red light at an intersection must stop for a red light before proceeding into the intersection, and if a white line is present, he is to stop at it upon approaching the red light. It is undisputed that Mr. Coffed approached the intersection along the shoulder with his head down and never stopped prior to hitting the side of the dump truck. It is undisputed that he did not stop at the white line. It is undisputed that there was in fact, a white line (R. 84-85), which he passed and subsequently struck the McCarthy truck as it turned right. Therefore, his violation of the above laws constitutes negligence per se and those violations were the sole proximate cause of the accident. B. Mr. Coffed's negligence was the proximate cause of the accident. As noted above, the Lancaster Police conducted an investigation into this accident. The investigators concluded that the accident happen strictly as a result of Mr. -5- I I ·- -· ·- Coffed's failure to stop at the red light (R. 76). Furthermore, Jason Tubbs testified that he was behind the McCarthy dump truck. He recalled passing the bicyclist before the intersection (as did Mr. McCarthy) and recalled that the McCarthy truck came to a stop at the intersection with Sheldon, at the red light. He observed the McCarthy truck put on its right tum signal, and both dump trucks came to a stop (R.53). As Mr. Tubbs sat behind Mr. McCarthy, he saw the bicyclist attempt to pass the McCarthy truck. He saw that the bicyclist had his head down as he passed the McCarthy truck and he saw that the bike did not stop for the red light. "The bicyclist was looking down when the impact occurred" (R. 53) Thus, the record reflects competent evidence that the accident, and the death of Mr. Coffed, occurred solely as a result of Mr. Coffed's own negligence. C. There can be no finding of negligence on behalf of Mr. McCarthy. The investigators deteffilined (R.76): In this collision it appears that the bicyclist would have been just out of the driver's field of view while initiating his Southbound tum. ~----~A_ t the D_MY fat.ali:ty_he_axing YYitness_es J ulie_S_te_ele and JasDn.Tuhhs_testified, as did one of the police officers, which did not result in any finding against Mr. McCarthy as he did not lose his license (R. 128). Furthermore, the witness Mr. Tubbs confirmed in his affidavit that Mr. McCarthy approached the intersection reasonably, came to a stop, turned on his right tum signal and started his controlled turn. -6- Therefore, there is no evidence that Mr. McCarthy acted in any unreasonable manner, and this complaint should be dismissed as against him, as a matter of law. D. Plaintiff's Counsel's Opposition to the Summary Judgment motion was insufficient to establish a material issue of fact in dispute so as to be grounds for denying the motion. Counsel argued below that the bike was in the cross walk and therefore he had the right of way as against the dump truck. This fails on many levels. Firstly, the cross walk in which the bike ultimately ended was the cross walk for pedestrians that would like to cross Walden, not Sheldon. Mr. Coffed was traveling perpendicular to that cross walk, not actually IN it. Secondly, cross walks are for pedestrians, not bicyclists, since bikes are to follow the rules of the road, as opposed to pedestrians, which have separate rules. Thirdly, and perhaps most importantly, we know that the actual contact between the bike and the truck occurred just before the Walden cross walk, not in it. The scratch marks/ gauging from the bike being dragged by the dump truck tire is evident in the close up photographs (R. 78-80). Thus, had this been the governing cross walk (which it wasn Y) and had this been a pedestrian (which it wasn t), the pedestrian would have been at fault as not yielding the right of way to a passing car who has the right of way outside a cross walk. Next, plaintiff's counsel argued below that Mr. McCarthy initially told the police he had a green light when he was making his turn (R.57). This is not exactly true, but more importantly, not relevant and not sufficient to deny the Summary Judgment motion. What the police investigator wrote, was the following: Investigators were also able to obtain a statement from the driver McCarthy -7- ·' . ~· . contiguous with the collision. Same indicated that he had a green light to proceed Eastbound on Walden Avenue. Based on the observations of Detective Kerl, it is known that McCarthy was extremely upset and shaken by the events that had just unfolded. McCarthy was reported to have been vomiting while providing the statement due to being upset ... Driver inexperience and/or error has been ruled out in this collision (R.73) Therefore, the police never looked at the collision as one that occurred while the truck had a green light; they always proceeded upon the fact that it was red, and yet, they still concluded that Mr. McCarthy was not at fault for the accident. The fact that Mr. McCarthy's confusing suggested that the light was green while physically and obviously distraught is not a material issue in dispute that would be sufficient to defeat a summary judgment motion. All four independent witnesses (R.73) indicated that the light was red and that the dump truck stopped at the intersection. Mr. McCarthy testified to that as well. He testified that he came to a stop behind Mr. Fulfaro as the lead dump truck made its right on the green light. He then crept up to the intersection and put on his right tum signal. This is undisputed and supported by the independent witnesses. E. All of the evidence supports a finding in favor of the defendants/appellants, Messrs. McCarthy and Fulfaro . Consider the Second Departments holding in Shapiro v. Munoz, 28 A.D.3d 638, 813 N.Y.S.2d 755 (2"d Dept. 2006): The defendant Raul Vivas Munoz demonstrated his prima facie entitlement to -8- judgment as a matter of law by establishing that the plaintiff, while riding a bicycle, violated Vehicle and Traffic Law § 1111 ( d)(l) by making a left turn against a red traffic light into the path of a vehicle operated by Munoz, which was legally proceeding through a green traffic light ( see Moreback v. Mesquita, 17 A.D.3d 420, 793NYS.2d148; Lestingi v. Holland, 297 A.D.2d 627, 747 NY.S.2d 522,- Cenovski v. Lee, 266 A.D.2d 424, 698 N YS.2d 868). ln response, the plaintiff failed to raise a triable issue of fact as to whether Munoz was in any way at fault in the happening of the accident or whether he could have done anything to avoid the collision (see Lestingi v. Holland, supra; Casanova v. New York City Tr. Auth., 279 A.D.2d 495, 719 N YS.2d 125; Puccio v. Caputo, 272 A.D.2d 387, 707 N YS.2d 478; Schneider v. American Diabetes Assn., 253 A.D.2d 807, 677 NYS.2d 627). Similarly, consider Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852 (2nd Dept. 2004): The defendant demonstrated his prima facie entitlement to judgment as a matter of law by establishing that the plaintiff, who was riding a bicycle, proceeded into an intersection controlled by a stop sign and failed to yield the right of way to his approaching vehicle (see Vehicle and Traffic Law§§ 1142[a], 1172[a], 1231; Morgan v. Hachmann, 9 A.D.3d 400, 780 NYS.2d 33; Nasirudin v. Harry, 8 A.D.3d 540, 778 NYS.2d 699; Bata/ v. Associated Univs., 293 A.D.2d 558, 559, 741 NYS.2d 551; Szczotka v. Adler, 291 A.D.2d 444, 737 NYS.2d 121: Meliarenne v. Prisco, 9 A.D.3d 353, 780 N YS.2d 30). The plaintiff's conclusory and speculative assertions in opposition to the defendant's motion for summary judgment concerning the defendant's speed and possible negligence in failing to avoid the accident were unsupported by any competent evidence and, therefore, did not raise a triable issue of fact (see Mora v. Garcia, 3 A.D.3d 478, 479, 771 N.YS.2d 138; Rieman v. Smith, 302 A.D.2d 510, 511, 755 N.Y.S.2d 256; Lupowitz v. Fogarty, 295 A.D.2d 576, 744 NYS.2d 480; Bo/ta v. Lohan, 242 A.D.2d 356, 661 N YS.2d 286; Meliarenne v. Prisco, supra). Accordingly, the Supreme Court -9- ... ,. , .·· should have granted the defendant's motion for summary judgment dismissing the complaint (see Alvarez v. Prospect Hosp., 68 N.Y2d 320, 508 N.YS.2d 923, 501 N.E.2d 572). Consider this Department's case of Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 (4th Dept. 2001): Supreme Court properly granted defendants' motions for summary judgment dismissing the complaint on the ground that decedent's failure to stop at the red light was the sole proximate cause of the accident. Carroll met his initial burden by establishing that he proceeded into the intersection with the right of way, that he was not exceeding the speed limit and that he was paying attention to the traffic surrounding him. He also submitted affidavits from eyewitnesses establishing that decedent had run the red light and that there was no time for Carroll to react to avoid the accident. "[A ]n operator who has the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require _them to_yield" ( Namisnak_v. Mal"tin, 244 A.D.2d25-8, 260,_664 N. YS.2d 435;_see, Kelsey v. Degan, 266 A.D.2d 843, 697 N. YS.2d 426). In opposition plaintiff failed to raise a triable issue of fact. Similar to the above defendants, the evidence in this case supports the finding that Mr. McCarthy was not at fault for this accident. He was lawfully driving down Walden when he legally approached the intersection-of Sheldon:. He came to a stop;-lawfully, at the red light. He turned on his right hand signal. He looked left, he looked right, and consulted all of his mirrors. He concluded that it was safe to make the right hand tum and begun to do so. Had Mr. Coffed put his head up and took note of the tum signal on the truck, and took note of the red light which he was rapidly approaching, and had followed the law of this state and came to a stop, this tragic accident would never have occurred. -10- .. 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 September 12, 2014 ADAMS, HANSO~:ttt!ibl..!~A. FISHBE ON, ESQ. ej' 'dant/ Appellant John McCart and Gasperino F. Fulfaro 20 Lawrence Bell Drive, Suite 300 Williamsville, New York 14221 Telephone: (716) 810-1332 -11-