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, 2017JA1\lt:S E BROWN DONALD p CHIARI SA,\ IUEL J. CAPIZZI MICHAl:L C. SCINTA )A1\ll:S /'vi. J\\UCKLE\\ll::E MI CH A EL R DRU.\ 11\ I THERESA J\I. WALSH DAVID w. OLSON BRADLl::Y D j\ IARBIJ: BROWN CHIARILLP ROSANN!:: Iv\. CUCINO NELSON E ScHuu:, JR ANGELOS . CA1\l8INO MICHELE A. BRAUN ATTORNEYS 5775 Broadway Lancaster, New York 14086-2360 *2470 Walden Avenue, Suite 300 Cheektowaga, New York 14225 TEL 716.681.7190 FAX 716 68 1. 8136* www.BrownChiari .com *not for service of process State ofNew York Court of Appeals Clerk's Office 20 Eagle Street Albany, NY 12207-1095 Attention: Andrew W. Klein, Chief Clerk andLegal Counsel to the Court E-filed RE: Co/fed v. McCarthy et al. Case No.: APL-2015-00202 Dear Mr. Klein: September 14, 2015 Please accept this in support of Appellant's position that there are issues of fact that preclude summary judgment in this case. PARALEGALS Kl,\\ILI l C DIRIENZO He \Tl IER 1\ l Ki INC T\,'-:H l BLEYi E LILSI A SCJLITER [LI'-' 1\ [ 1\ lLTSCI IL Hr:x1 HFR A L'Rl\llY 1\l IR\ E FRIFll\i.IN1'- N-\IJINF A RFFOR\IXI Cl-IERYL ;\ ROBl'-)ON s.,RA L \V,RRI'- ,, lORC. \N S CRFF!\F TERILY1' I IURFK "Viewing the evidence in the light most favorable to the non moving party as the Court must, there are issues of fact that preclude summary judgment." (See Russo v. YMCA Greater Buffalo, 12 AD3d 1089, lv dismissed 5 NY3d 746). Record shows that Mr. Coffed's bicycle was found in the crosswalk. Simply because Defendant might have been able to make the right tum does not mean it was prudent to do so. New York State Vehicle and Traffic Law Section 111 l(d)(2) provides that the turning vehicle must stop at the red light and yield the right of way to pedestrians within a marked or unmarked crosswalk at the intersection, and to other traffic lawfully using the intersection. Lockport Office* 1 72 East Avenue Lockport, New York 14094 TEL 716.68 1.7190 Buffalo Office* 69 Delaware Avenue, Suite 701 Buffalo, New York 14202 TEL 716 68 1.7190 (*satellite offices - not for mail or service of process) Rochester Office* 75 South Clinton Avenue, Suite 510 Rochester, NY 14604 TEL 1.800.662.8696 Police report photographs clearly show Mr. Coffed's bicycle in the middle of the crosswalk. This fact alone shows negligence on the part of Defendant for violating the Vehicle and Traffic Law by failing to cautiously enter the intersection after stopping at the red light and failing to yield the right of way to the bicycle lawfully within the crosswalk. See, Vehicle and Traffic Law Section 111 l(d)(2)(a). Photographs in the Record on Appeal at pp. 78, 79, 80 and 81 show the position of the Plaintiff's bicycle after the accident and raise an issue of fact as to whether the Decedent proceeded into the intersection at all. Even assuming, arguendo, that the Decedent was negligent and his negligence contributed to the accident, a jury should resolve the issue as to whether or not the Decedent's negligence was the sole proximate cause of the accident. There can be more than one proximate cause of an accident and the issue of comparative negligence is a question for the jury to decide. (Todd v. Godeck, 71AD3d872). In this case, there is evidence that Mr. McCarthy failed to exercise due care in colliding with Mr. Coffed's bicycle. Mr. McCarthy was aware that there was bicylist in the roadway, traveling on the right side of the road, within one mile of his attempted right hand tum. Mr. McCarthy testified that once traffic cleared coming across Walden on Sheldon, he looked to his left and looked to his right and didn't see anything. Despite not seeing the bicyclist, Mr. McCarthy chose to proceed with his tum without locating that bicycle. He did not know whether the bicycle had turned on another street, stopped at its destination, or, as was the unfortunate reality, was located directly to his right on the road. Defendant McCarthy had an obligation to see what was there to be seen and to exercise reasonable care under the circumstances to avoid an accident. (Cupp v. McGaffick, 104 Ad3d 1283, 1284, including in particular a collision with a bicylist (see Vehicle and Traffic Law Section 1146(a)). There are triable issues of fact as to whether Defendant failed to see that which was there to be seen through the proper use of his senses. In addition, it is undisputed that there was bicycle lane to Defendant's right as he drove on Walden A venue toward the intersection, and a jury should determine whether, in the exercise of due care, Defendant should have anticipated that a bicyclist would be in the bicycle lane (See Colpan v. Allied Central Ambulette, Inc., 97 AD3d, 776, 777-778). At the time of the incident, the dump truck had 5 equipment violations. (R. 73) While Defendant testified that he personally inspected the truck and that all tailights and tum signals were working on the morning of the accident, 3 of the 5 violations issued by Lancaster Police were for inoperative lamps and signals (R.110-111, 112). Notably, these three violations involve the inoperability of rear lighting on the dump truck. The right rear hazard lamp did not operate, the right rear stop lamp did not operate, and the right rear tum signal did not operate. (R.73). The police report specfically notes that the violation in relation to this right rear tum signal could have taken the truck out of service (R. 73). The photographs of the dump truck in the record show that the inoperable right rear tum signal was at eye level for the Decedent. The operable right rear tum signal was at the very top of the dump box which would not have been in the Decedent's visual field. (See photographs R. 84, 85). Whether or not the inoperable condition of the truck's rear tum signal was a proximate cause of the accident is a question for the jury. To conclude that it was not as a matter of law requires the resolution of a factual inference in favor of the Defendants, which is improper on a motion for summary judgment (Morris v. Lennoxville Hospital, 232 Ad2d 184, 185, Affirmed 90 NY 2d 953). Wherefore, we respectfully request that this Court affirm the Trial Court's Order that denied Defendant's motion for summary judgment dismissing the Complaint. Respectfully yours, BROWN CHIARI LLP Nzl~r. NES/TJ cc: Nicole B. Palmerton, Esq. E-tile