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, 20170 To be Argued by: ANGELO S. GAMBINO, ESQ. Time Requested for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals APL-2015-00202 SUSAN M. COFFED, as Administrator of the Estate of JAMES B. COFFED, Plaintiff-Appellant, vs. JOHN N. McCARTHY, GASPERINO F. FULFARO, Defendants-Respondents. Appellate Division Docket Number: CA 14-01730. Erie County Index No.: I-2013-242. REPLY BRIEF FOR PLAINTIFF-APPELLANT BROWN CHIARI, LLP Attorneys for Plaintiff-Appellant Susan M. Coffed, as Administrator of the Estate of James B. Coffed 2470 Walden Avenue Buffalo, New York 14225 Telephone: (716) 681-7190 Facsimile: (716) 681-8136 ANGELO S. GAMBINO, ESQ. Of Counsel Date of Completion: May 2, 2016 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................... ii POINT I - IT IS A JURY'S FUNCTION, NOT THAT OF THE COURT, TO DECIDE WHETHER THE DEFENDANT, WHO TURNED RIGHT ON RED AND STRUCK AND KILLED A BICYCLIST IN THE INTERSECTION, ENTERED THE INTERSECTION CAUTIOUSLY . . . . . . . . . . . . . 1 POINT II - IT IS WELL ESTABLISHED THAT THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A MOTOR VEHICLE ACCIDENT .......................... 3 POINT III - THERE ARE AT LEAST FOUR DISTINCT QUESTIONS OF FACT WHICH PRECLUDE SUMMARY JUDGMENT IN THIS MATTER ....................................... 7 1. Whether Mr. Coffed entered the intersection to cross Sheldon A venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Whether the traffic signal controlling the traffic on Walden Avenue was red at the time defendant McCarthy made his right hand tum ................................ 8 3. Whether the defendant driver cautiously entered the intersection or failed to see what was there to be seen . . . . . . . . . 8 4. Whether McCarthy's inoperative right tum signal was a proximate cause of the accident . . . . . . . . . . . . . . . . . . . . . 9 POINT IV - DEFENDANTS ATTEMPT TO MISUSE THE POLICETRAFFICFATALITYREPORT ................... 10 CONCLUSION ................................................... 12 TABLE OF AUTHORITIES Page(s) CASES: Caldron-Scotti v. Rosenstein, 119 A.D.3d 722 (2d Dept. 2014) ................................. 4 Costalas v. City of New York, 143 A.D.2d 573 (l81 Dept. 1988) .................................. 3 Cox v. Nunez, 23 A.D.3d 427 (2d Dept. 2005) .................................. 3 Diener v. Fernandez, 2015 NY Slip Op. 30109u, (Sup. Ct. Queens Cty. 2015) ............... 8 Forte v. City of Albany, 279 NY 416 (1939) ............................................ 3 Gitlin v. Chirinkin, 98 A.D.3d 561 (2d Dept. 2012) .................................. 1 Jones v. Radeker, 32 A.D.3d 494 (2d Dept. 2006) .................................. 1 Mancuso v. Compucolor, Inc., 172 A.D.2d 153 (!81 Dept. 1991) ................................. 10 Morris v. Lenox Hill Hospital, 232 A.D.2d 184 (1st Dept. 1996) .................................. 9 Noseworthy v. City of New York, 298 N.Y. 76 (1948) ............................................ 7 -11- Page(s) Palma v. Sherman, 55 A.D.3d 891 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6 Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dept. 2012) .................................. 1 Segal v. Sweeny, 266 A.D.2d 200 (2d Dept. 1999) ................................. 3 Szymanski v. Robinson, 234 A.D.2d 992 (4th Dept. 1996) ................................. 10 OTHER AUTHORITIES: CPLR 3212 .................................................... 1,4,5 Vehicle and Traffic Law§ 11 l l-(d)(2)a ................................. 2 Vehicle and Traffic Law § 1146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 -111- POINT I IT IS A JURY'S FUNCTION, NOT THAT OF THE COURT, TO DECIDE WHETHER THE DEFENDANT, WHO TURNED RIGHT ON RED AND STRUCK AND KILLED A BICYCLIST IN THE INTERSECTION, ENTERED THE INTERSECTION CAUTIOUSLY. The standard for green light cases requires all drivers at an intersection to proceed with reasonable care. When making a right tum on a red light courts should give additional scrutiny and require that the driver enter the intersection "cautiously". Jones v. Radeker, 32 A.D.3d 494 (2d Dept. 2006). Whether defendant, Mr. McCarthy "cautiously entered the intersection" after stopping for the red light is a decision to be made by a jury. Simply put, that is a question of fact. It is improper for the Court to determine, as a matter of law, that Mr. McCarthy acted cautiously on the day that he struck and killed the decedent, Mr. Coffed. See Rivers v. Birnbaum, 102 A.D.3d 26, 42 (2d Dept. 2012), and Gitlin v. Chirinkin, 98 A.D.3d 561 (2d Dept. 2012). To decide otherwise, would be to allow courts and not juries to decide issues of fact, which is contrary to well settled law on CPLR 3212 summary judgment motions. This is especially true given that Mr. McCarthy admitted that he observed Mr. Coffed on his bicycle approximately one (1) mile before the intersection where the accident occurred. (R. 119). Pursuant to Vehicle and Traffic Law § 1146, "every driver of a vehicle shall exercise due care to avoid colliding with any -1- bicyclist, pedestrian or domestic animal upon any roadway and shall give the warning by sounding the horn when necessary." It is undisputed that Mr. McCarthy failed to see Mr. Coffed before beginning his right tum at the intersection and did not sound his horn prior to striking Mr. Coffed with his front bumper. (R. 125 - 126). Pursuant to Vehicle and Traffic Law § 1111-( d)(2)a: Traffic facing a steady circular red signal may cautiously enter the intersection to make a right tum after stopping . . . Such traffic shall yield the right of way to pedestrians within marked or unmarked crosswalk at the intersection, and to other traffic lawfully using the intersection. It should be for a jury to decide whether Mr. McCarthy exercised "due care" between the tirrie he saw Mr. Coffed riding his bicycle on Walden Avenue and when he struck and killed Mr. Coffed by turning right on red at the next intersection. The Fourth Department's conclusions that Mr. McCarthy "cautiously entered the intersection" when turning with a red light and that he "exercised due care" after he saw the bicyclist on Walden Avenue are factual determinations that should not be made by a Court on a summary judgment motion. For these reasons, the Fourth Department's decision must be reversed. -2- POINT II IT IS WELL ESTABLISHED THAT THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A MOTOR VEHICLE ACCIDENT. It has long been held that there can be more than one proximate cause of a motor vehicle accident. Forte v. City of Albany, 279, NY 416 (1939). Indeed, even where there is a finding that the plaintiff is negligent, granting summary judgment is not appropriate unless the moving party can prove that there are no triable issues of fact as to whether the defendant used reasonable care to avoid the collision. Cox v. Nunez, 23 A.D.3d 427 (2d Dept. 2005). Furthermore, a driver with the right of way has a duty to use reasonable care to avoid a collision. Segal v. Sweeny, 266 A.D.2d 200 (2d Dept. 1999). In that case, the Appellate Court held that "it is well settled that a driver must exercise reasonable care notwithstanding the invitation to proceed by the green light facing him." (Emphasis added). It is all the more important when the driver proceeds on red. The doctrine of comparative negligence has been applied to impose partial liability on a driver who lawfully entered an intersection with a green light, if he or she fails to use reasonable care to avoid the collision with another vehicle in the intersection. See, Costa/as v. City of New York, 143 A.D.2d 573 (1st Dept. 1988) -3- (holding that "the conduct of both drivers approaching an intersection controlled by a traffic light must be consistent with reasonable care under the circumstances by exercising forbearance and caution regardless of the light"). Although defendants point to some evidence of decedent, Mr. Coffed's purported negligence at the time of the accident, it is up to a jury to determine whether the defendant, Mr. McCarthy was comparatively negligent. See, Caldron- Scotti v Rosenstein, 119 A.D.3d 722 (2d Dept. 2014). Any evidence which tends to show Mr. Coffed's negligence as one cause of the subject accident is immaterial to this motion given the facts of this case. Unless defendants can show that defendant, Mr. McCarthy, was completely free from comparative negligence as a matter of law, the CPLR 3212 motiori must fail. As stated above, they cannot. Defense counsel's arguments pertaining to proximate cause are unpersuasive. Defense counsel contends that "this accident does not happen if the bicyclist is stopped at the white line prior to the cross walk on Walden." (Respondent's Brief, p. 5). Even if true, such an argument is immaterial to the present summary judgment motion before the court. It is equally true that the accident would not have occurred if defendant McCarthy remained stopped at the red light and waited for the intersection to be completely clear prior to making his right tum on red. Moreover, the accident would not have occurred if defendant McCarthy observed Mr. Coffed either in his mirror or out of his window entering -4- the intersection. Furthermore, this accident likely does not occur if Mr. McCarthy was operating a fully operational vehicle with working tum signals so that Mr. Coffed was aware of McCarthy's intention to tum right at the intersection. There are no doubt countless other possibilities of what could have prevented this accident in addition to Mr. Coffed stopping at the white line prior to the crosswalk. These unanswered questions raise triable issues of fact which must be resolved by the jury. It was wholly improper for the Fourth Department to resolve these factual disputes against the non-moving party on a CPLR 3212 summary judgment motion. In a strained attempt to argue that Mr. Coffed's purported negligence was the sole proximate cause of the accident, the defendant argues that "the duty to see what is there to be seen is also a duty placed upon the bicyclist." (Respondent's Brief, p. 13, emphasis added). While this is of course true, such a statement is irrelevant on defendants ' motion for summary judgment. The question that must be answered by this Court is not whether Mr. Coffed failed to see Mr. McCarthy's vehicle, but whether the evidence supports a finding that Mr. McCarthy cannot be found comparatively negligent, as a matter of law, despite his failure to see Mr. Coffed enter the intersection. -5- In support of their argument, defendants cite a Second Department Case, Palma v. Sherman, 55 A.D.3d 891 (2d Dept. 2008), where the Second Department granted summary judgment against a bicyclist. Defendants fail to point out that in the Palma case, summary judgment was granted because the bicyclist ran into the defendant's vehicle "while the vehicle was stopped and waiting to exit the parking lot." Id. at 892 ( emphasis added). In this case, both the defendant dump truck and Mr. Coffed's bicycle were moving and, specifically, defendant McCarthy was moving against a red light when he struck Mr. Coffed with his right front bumper. These facts preclude summary judgment as a matter of law and require a jury trial. -6- POINT III THERE ARE AT LEAST FOUR DISTINCT QUESTIONS OF FACT WHICH PRECLUDE SUMMARY JUDGMENT IN THIS MATTER. 1. Whether Mr. Coffed entered the intersection to cross Sheldon Avenue. The police photographs clearly show Mr. Coffed's bicycle in the middle of the crosswalk on Walden Avenue. (R. 78-81). There has been no testimony or evidence pertaining to the intentions of Mr. Coffed at the intersection. No one will ever be sure of Mr. Coffed's intentions at the intersection since he died as a result of this accident. See generally, Noseworthy v. City of New York, 298 N.Y. 76 (1948). Defendant alleges that there is no "expert proof submitted that supports the conclusion that the initial contact occurred where the bike is seen in the police photographs." (Respondent's Brief, p. 10). This matter was decided on defendants' motion for summary judgment in which defendants offered no expert testimony regarding the exact spot where the contact occurred. It is just as likely that the contact occurred where the bicycle is seen in the police photographs as any other location of the intersection. It could have easily been Mr. Coffed's intention to tum left from the bicycle lane in front of the vehicles stopped at the red light on Walden Avenue, including the defendant dump truck --- a maneuver that would have given him the legal right of way. This certainly is a theory that plaintiff -7- should be able to advance at trial and have a jury consider. Thus, it was improper for the Fourth Department to determine, as a matter of law, the direction in which Mr. Coffed was traveling, given the physical evidence. 2. Whether the traffic signal controlling the traffic on Walden A venue was red at the time defendant McCarthy made his right hand tum. Defendants argue that no dispute exists that the Walden traffic light was red at the time defendant made his right hand tum, ignoring McCarthy's own statement to the police, immediately after the accident, that the light was green. (R. 73, 126). Clearly such an admission is admissible at trial and any arguments regarding the circumstances nfthat admission go to its weight and not its admissibility. Further, the conflicting statements of McCarthy and the statements of the independent witnesses do nothing more than raise a triable question of fact regarding the color of the light at the time that McCarthy made his tum. McCarthy's inconsistent statements regarding the color of the light, alone raise a triable issue of fact, which should defeat defendants' motion for summary judgment. 3. Whether the defendant driver cautiously entered the intersection or failed to see what was there to be seen. This question was addressed above m Point I, supra. Simply put, a defendant aware of a bicyclist in the bicycle lane can be found negligent for failing to check before turning into the bicyclist. See Diener v. Fernandez, 2015 NY Slip -8- Op. 30109u, (Sup. Ct. Queens Cty. 2015). Here, since McCarthy saw Mr. Coffed earlier on Walden A venue and failed to relocate him before turning, it is for the jury to determine whether McCarthy's actions in turning before locating Mr. Coffed form a basis for comparative negligence. 4. Whether McCarthy's inoperative right tum signal was a proximate cause of the accident. The police report indicates that the right tum signal was inoperative at the time of the accident. It also states that ·McCarthy was issued a Uniform Traffic Ticket for the violation. (R. 73). The Fourth Department's conclusion, as a matter of law, that the inoperative condition of the truck's rear tum signal was not a proximate cause of the accident was a resolution of a factual inference in favor of defendants and improper on a summary judgment motion. (R. Sa). See, Morris v. Lenox Hill Hospital, 232 A.D.2d 184, 185 (1st Dept. 1996). Should this Court find that even one of these four distinct triable issues of fact raised by the plaintiff has not been conclusively established as a matter of law, the Fourth Department's Order must be reversed c).Ild summary judgment must be denied. Accordingly, Plaintiff respectfully requests an Order of the Court reversing the Fourth Department's Decision granting defendants' motion for summary judgment on this basis. -9- POINT IV DEFENDANTS ATTE1\1PT TO MISSUSE THE POLICE TRAFFIC FATALITY REPORT It is settled law that a police investigation report is admissible only to the extent that it contains facts preserved by the Trooper who prepared it. The report is generally not admissible, however, to the extent that it contains opinions or conclusions drawn from those facts. Szymanski v. Robinson, 234 A.D.2d 992 (4th Dept. 1996); see also, Mancuso v. Compucolor, Inc., 172 A.D.2d 153 (1st Dept. 1991). Moreover, the purpose of the fatality investigation by the Lancaster Police Department was to determine criminal liability on behalf of defendant McCarthy. To now attempt to use such conclusions in support of summary judgment in a civil case is illogical and improper. Defendants' reference to the police accident report as "expert proof' (Respondent's Brief, p. 16) regarding Mr. McCarthy's comparative fault is misleading. Nowhere in the report do the officers give an opinion regarding Mr. McCarthy's alleged negligence. (R. 67-76). Clearly, an opinion that Mr. McCarthy was not criminally liable is not a comment that he is free from civil negligence, as a matter of law. -_10- On the other hand, defendants' arguments that plaintiff wishes to reject the entire police report are clearly mistaken. The findings of fact contained in the police fatality report, including the finding of an inoperative right rear tum signal on the defendant vehicle, the location of the bicycle after the accident, and the photographs taken by the police following the accident, are admissible. As shown in Point III, supra, those facts raise triable issues of fact that preclude summary judgment. -11- CONCLUSION For the reasons stated above and in Plaintiffs main brief, there exist triable issues of fact in this matter which preclude summary judgment. The Fourth Department took it upon itself to resolve inferences and factual determinations against the plaintiff on defendants' motion for summary judgment. Therefore, plaintiff respectfully requests that the Fourth Department's Decision granting defendant's motion for summary judgment be reversed, and defendants' motion for summary judgment be in all respects, denied. Respectfully Submitted, Angelo S. Gambino, Esq. BROWN CHIARl LLP Attorneys for Plaintiff-Appellant 2470 Walden Avenue Buffalo, New York 14225-4751 (716) 681-7190 -12-