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, 2017.. - · _, TABLE OF CONTENTS Table of Contents ...................................................................................................... i Table of Authorities ................. ................................................................................ ii Other Authorities ..................................................................................................... iii Questions Presented ..................... ...................... ...... ... ....... ...................................... 1 Preliminary Statement ... .... ....... ... .... ..... .......... ..... ................ ............. .... ............. ..... .. 2 Statement of Facts ............. .................................................................................... 3-6 Argument .................................................................................................................. 7 POINT I: DEFENDANTS FAILED TO MEET THEIR BURDEN TO SHOW THERE IS NOT MATERIAL ISSUE OF FACT ................................................................................. 7-12 POINT II: DEFENDANTS FAILED TO MEET THEIR BURDEN OF PROOF TO SHOW THAT THERE CAN BE NO FINDING OF NEGLIGENCE ON MR. MCCARTHY'S BEHALF ............................................................................... 12-18 Conclusion ..................................................................................... ........ ............ .... . 19 TABLE OF AUTHORITIES CASES: Alvarezv. Prospect Hosp., 68 N.Y.2d 320 (1986) ............................... .. .. .. .. ... .. .. .. .. . 7 Aranzullo v. Seidell, 96 AD2d 1048, 1049 (2d Dept. 1983) ........................................ 11 Baker v. Close, 204 NY 2nd 92 (1912) .... .... . .... ........ .... . .. . ................... ......... ... ... 13 Barile v. Carroll 720 NYS2d 674, 675 (4th Dept. 2001) .................... . .............. .. . . . .... 17 Batal v. Assoc. Universities, Inc., 293 AD2d 55, 741NYS2d551 (2d Dept. 2002) .... ... . .... 15 Dix v. Pines Hotel, Inc., 188 A.D.2d 1007 (4th Dept. 1992) ............. .. ........................ 7 Duffy v. Chautauqua, 225 AD 2nd 261 (4th Dept., 1996) ......... ...... .... .. .... .. .. . .... .. . ..... 13 Goldstein v. County of Monroe, 77 AD2d 232 (4th Dept. 1980)., . ........ .. .... . . .. ............. 7 Grossman v. Spector, 48 AD3d 750 (2d Dept. 2008) .. ... .. ... . .... ..... . ..... .. .. . .... .. .. .... ... .. 8 L.NL. Contr. v. MT.F Indus., Inc. 190 AD2d 714, 715 (2d Dept. 1993) ........................ 7 Schrader vs. Carney, 180 AD 2nd 200, 209 (4th Dept., 1992) ..... . ... ............................ 13 Shapiro v. Munoz, 813 NYS2d 755, 756 (2d Dept. 2006) . .. .. ..... .... . ..... . ..... .. ... .. .. . ...... 17 Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957) .......... . ................ . ... 7 Stalikas v. United Materials, L.L.C., 306 A.D.2d 810, 811 (4th Dept. 2003) .................... 12 Streeter v. Kingston, 784 NYS2d 924 (N.Y. Sup. Ct. Onondaga County 2004) ................. 12 Todd v. Godek, 71 A.D.3d 872 (2d Dept. 2010) ............ . . . .......... . ... . ....................... . 15 Trzepacz v. Jara, 782 NYS2d 852 (2d Dept. 2004) .......... . . ...... .. .... .. . . . ............. .... .. .. 17 Zupnickv. Certified Lumber Corp, et al., 851 NYS2d 75 (N.Y. Sup. Ct. Kings County 2007).10 11 OTHER AUTHORITIES Page 49 C.F.R. 393.9, et seq ..... ...... .. . .. ... .. . . . ..... .. .. ......... . .. . .. . . . . . . ... .... . ... .. ... ........... . 15 N.Y. CPLR § 3212(b) .... . .... . ... .. . . ... .. . .... ....... . ...... . .. ..... . ... . .... .... . .... .... . . . . . .. . ... .. 7 New York State Pattern Jury Instruction Sections 2:77, 2:77.1 ..... . . . . . ... . ... . . .. . . . ... ....... .. 13 New York State Vehicle and Traffic Law § 1111 ( d) ............ . . ..... ..... .. . . . . ... .. . ....... . . ... 10 New York State Vehicle and Traffic Law §111 l(d)(2) ....... . . .. ... .... .. . .. .. . ... . . . . . ..... . .... . 7,8 New York State Vehicle and Traffic Law §111 l(d)(2)(a) ...... .. ... ... .. ... ........... . ... . .... .... 8 New York State Vehicle and Traffic Law § 1146 ....... .. .. ... . .... . . .. ... .... ..... . .. . . . .. .... . . .. ... 13 New York State Vehicle and Traffic Law§ 1163 ......... ... ..... .... . .. .. . .... . . .. ... . ... . . .. .. .... 13 111 .. . QUESTIONS PRESENTED 1. Whether the Trial Court properly denied summary judgment in its entirety where the appellants-defendants, John N. McCarthy and Gasperino F. Fulfaro, failed to show that there are no material issues of fact regarding negligence and proximate cause? It is respectfully submitted that this question be answered in the affirmative because they have failed to show Mr. Coffed's alleged negligence was the sole proximate cause of the accident or that Mr. McCarthy was free of all negligence. BROWN CHIARI LLP -Page 1- ' · PRELIMINARY STATEMENT Plaintiff-respondent, Ms. Susan M. Coffed, as Administrator of the Estate of James B. Coffed (hereinafter "Mr. Coffed" or "Plaintiff'), submits this brief in opposition to the appeal of Defendants, Mr. John N. McCarthy (hereinafter, "McCarthy") and Mr. Gasperino F. Fulfaro (hereinafter, "Fulfaro")(collectively, "Defendants-Appellants" or "Defendants") from the Order and Memorandum decision of the Honorable Henry J. Nowak, J.S.C. granted on June 17, 2014, and entered on June 18, 2014, which denied Defendants-Appellants' motion for swnmary judgment. For the reasons set forth herein, the Order of the Court below must be affirmed in its entirety. BROWN CHIARI LLP -Page 2- STATEMENT OF FACTS On July 2, 2012, Mr. Coffed was tragically killed when he was run over by a 1998 Ford dump truck, weighing more than 26,000 pounds, at the intersection of Walden Avenue and Sheldon Avenue in the Village of Lancaster. (R. 62, 65, 66). On that clear, sunny day, Mr. Coffed was riding his bicycle and the dump truck was being driven by Defendant-Appellant, Mr. McCarthy. (R. 65, 70, 114). The morning of the collision that took Mr. Coffed's life, Mr. McCarthy was driving the 1998 Ford dump truck to an unknown location - he testified that he was following his boss in a convoy to a jobsite somewhere in Lancaster. (R. 109). Mr. McCarthy stated that the convoy took Transit Road south to Walden Avenue, making a left-hand turn onto Walden to travel eastbound toward Sheldon Avenue. (R. 114). After entering Walden Avenue, Mr. McCarthy testified that he was in the right hand lane, heading eastbound. (R. 114, 117). He testified that he first saw Mr. Coffed on his bicycle about 1 mile before the intersection of Walden Avenue and Sheldon Avenue, also on the right-hand side of the roadway. (R. 119). Mr. McCarthy further stated that there were no major intersections between Transit and Sheldon and, as shown by his testimony, was aware that Mr. Coffed was traveling in the same direction as Mr. McCarthy's dump truck on Walden. (R. 115, 119-120) As he approached the Walden-Sheldon intersection, Mr. McCarthy testified that he first saw the traffic light when he was approximately 200 feet away, and that it was green at the time. (R. 117, 118). He estimated that he was travelling somewhere between 35 and 38 miles per BROWN CHIARI LLP -Page 3- hour. (R. 117). Mr. Fulfaro was making a right-hand turn onto Sheldon, and Mr. McCarthy testified that he knew Mr. Fulfaro was going to make that turn because Mr. Fulfaro had his blinker on a couple hundred feet before the light. (R. 118). McCarthy then testified that he came to a complete stop approximately 100 feet from the light while he waited for Fulfaro to make his turn at the light. (R. 119). He stated that he was stopped completely for approximately 20 seconds while Fulfaro made his tum, and then proceeded toward the light at a speed of anywhere from 4-6 miles per hour. (R. 120-121 ). When he was approximately 70 feet from the light, he testified that it turned red and he came to a complete stop, again, for about 20 seconds. (R. 121). Next, he testified that he crawled up to the light, and was waiting on traffic from the other side of Sheldon to cross Walden from his left to his right. (R. 121). McCarthy testified that he was stopped for a minute and a half at that light waiting for traffic to clear. (R. 124). Once the cross traffic cleared, McCarthy looked both ways, "didn't see anything" and proceeded into the intersection to make his right-hand turn. (R. 124, 125). Yet, as he attempted the turn, Mr. McCarthy said he heard a truck horn, coming from a westbound-facing truck across the street, and felt something. (R. 125). He stopped the truck immediately, got out and saw Mr. Coffed on the ground. (R. 125) The Lancaster Police Department reported to the scene and conducted an investigation. Contrary to Defendants' suggestions to the court below, 1 the police report indicates that the 1 Defense counsel relies on Mr. McCarthy's testimony on this fact and erroneously posited to the court below in its moving papers that "there [was] no evidence to dispute the fact that there was no designated bicycle lane on Walden Avenue." (R. 19, paragraph 26) BROWN CHJARI LLP -Page 4- shoulder of Walden Avenue "has markings indicating bicycle traffic is permitted." (R. 70). Police accident photos also show a clearly delineated bicycle lane on Walden Avenue approaching the intersection with Sheldon, however, Mr. McCarthy testified that there was no bicycle lane on Walden Avenue of which he knew. (R. 70, 95, 96, 115-116). Police Accident photos also show Mr. Coffed's bicycle was found within the crosswalk. (R. 78-81). There is no witness testimony and no indication in the record that Mr. Coffed was riding his bicycle outside the designated bicycle lane at any time prior to the collision. At the time, the dump truck had five equipment violations. (R. 73). While Mr. McCarthy testified that he personally inspected the truck and that all taillights and turn signals were working on the morning of the accident, three of the five violations issued by Lancaster Police were for inoperative lamps and signals. (R. 110-111, 112). Notably, those three violations involved 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 turn signal did not operate. (R. 73). The police report specifically notes that the violation in relation to the right rear turn signal could have taken the truck out of service; however, there was an operable turn signal at the top of the truck's dump box. (R. 73). The police report also indicates that . the "sun was rising in the East which could have been a distraction for Eastbound traffic." (R. 70). Indeed, Mr. McCarthy told police that the sun made it difficult for him to see, even though he was wearing sunglasses at the time. (R. 73). In fact, investigators determined that the sun was a "significant factor in this collision." (R.73). Ultimately, after conducting its investigation, the Lancaster Police Department concluded that a BROWN CHIARI LLP -Page 5- "combination of sun glare, the dump truck's height and the bicyclist's geographical position relative to the dump truck" prevented Mr. Coffed from seeing the red light on Walden Avenue. (R. 73). It is undisputed that Mr. Coffed took every precaution possible to ensure he was visible while on the road - he wore a helmet with a headlamp as well as reflective clothing, he had three red flashing lights mounted to the back of his bicycle, a working bell, brightly colored stickers, and a rear view mirror mounted to the handlebars. (R. 71). In fact, investigators noted that Mr. Coffed "went above and beyond the required measures to ensure high visibility and safety." (R. 73). BROWN CHIARI LLP -Page 6- ARGUMENT On a motion for summary judgment, the moving party must set forth evidentiary proof, in admissible form, which eliminates any material issue of fact and warrants judgment, as a matter oflaw, in its favor. NY CPLR § 3212(b); see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). In determining a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, accepting the facts alleged by the nonmoving party and all inferences that may be drawn as true. Dix v. Pines Hotel, Inc., 188 A.D.2d 1007 (4th Dept. 1992). As set forth below, the lower court properly denied appellant-defendant's motion for summary judgment because material issues of fact remain for resolution at trial. POINT I DEFENDANTS FAILED TO MEET THEIR BURDEN TO SHOW THERE IS NO MATERIAL ISSUE OF FACT Defendants attack Plaintiffs arguments below and state that they were insufficient to establish a material issue of fact. However, summary judgment is a drastic remedy and "[ e ]ven the color of a triable issue forecloses the remedy." L.NL. Contr. v. MTF Indus., Inc. 190 AD2d 714, 715 (2d Dept. 1993); see Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957); Goldstein v. County of Monroe, 77 AD2d 232 (4th Dept. 1980). Here, the record reveals a number of material facts that require determination at trial. a. The record shows that Mr. Coffed's bicycle was found in the crosswalk Simply because Mr. McCarthy might have been able to make the right turn, it does not mean it was prudent to do so. New York State Vehicle and Traffic Law §1 ll l(d)(2) provides BROWN CHIARI LLP -Page 7- that a right-hand turn on red may be made. However, the turning vehicle must stop at the red light and yield the right of way lo pedestrians within a marked or unmarked cross-walk at the intersection, and to other traffic lawfully using the intersection. 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, McCarthy, for violating the Vehicle and Traffic Law by failing to cautiously enter the intersection to make a right turn 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§ 11 l(d)(2)(a); Grossman v. Spector, 48 AD3d 750 (2d Dept. 2008). Nonetheless, Defendants suggest that the actual contact between Mr. Coffed's bicycle and the truck occurred "just before the Walden cross walk" as evidenced by the scratch marks/gauging from the bike being dragged by the dump truck. (See Brief for Defendants- Appellants, page 7). However, this sweeping conclusion is nothing more than speculation. There is no testimony or evidence that verifies those gauge marks were made by Mr. Coffed's bicycle or where the point of impact occurred in relation to the road markings. Further, there is no testimony or evidence that clearly proves Mr. Coffed' s intentions at that crosswalk/intersection. Plaintiff maintains that these are factual determinations best left for trial. We cannot know what decedent, Mr. Coffed intended to do at that crosswalk/intersection. The presence of his bicycle squarely within the crosswalk is some evidence, however, that he intended to utilize the crosswalk and tum left across Walden, in front of Mr. McCarthy's dump truck, thereby having the right of way. BROWN CHIARI LLP -Page 8- Therefore, Defendants fail to establish entitlement to summary judgment because a material issue of fact r~mains. b. Evidence supports a finding that Mr. Coffed did not proceed into the intersection against the red light Similarly, Defendants repeatedly assert that Mr. Coffed ran the red light and proceeded into the intersection of Walden and Sheldon, against the traffic signal and failing to yield the right-of-way to oncoming traffic. This allegation is entirely misplaced and unsupported by the record. In so claiming, Defendants gloss over a very important fact - Mr. Coffed never made it into the intersection and could not have conclusively "run" the light. In their papers before the court below, Defendants asserted that "there was no designated bicycle lane on Walden Avenue" (R. 19, paragraph 26), and it was clear from Mr. McCarthy's testimony that he did not believe there was bicycle lane on Walden. However, the Lancaster Police Report, as well as photographs of the scene of the collision, clearly show that the shoulder of Walden Avenue "has marking indicating bicycle traffic is permitted." (R. 70). Defendants' brief before this Court, similarly, assumes there was no bicycle lane, when it asserts that Mr. Coffed "did not stop at the red light behind the dump truck." (Brief for Defendants-Appellants, page !)(emphasis added). There is no indication in the record and no witness testimony that Mr. Coffed was riding his bicycle outside the designated bicycle lane at any time. Accordingly, he had no obligation to stop behind Mr. McCarthy's dump truck. In fact, having his own lane, he had every right, while in the bicycle lane, to approach the intersection at least up to the stop line, and arguably into the crosswalk, if his intentions were to use it. BROWN CHIARI LLP -Page 9- Further, Mr. Coffed's bike was found, as mentioned above, squarely in the crosswalk, meaning, at lht! very least, that Mr. Coffed never even made it into the intersection. There is no testimony or evidence to suggest that Mr. Coffed sped up in any attempt to pass Mr. McCarthy's truck, or that he intended to blindly run a red light, with no concern whatsoever for traffic coming across Walden on Sheldon. The record does show that, whatever Mr. Coffed intended to do or was doing, Mr. McCarthy's truck hit Mr. Coffed's bicycle before it ever reached the intersection - whether it was at the stop line, between the stop line and the crosswalk, or in the crosswalk is a question of fact not answered by the record. Accordingly, the record and physical evidence supports only the conclusion that Mr. Coffed never passed Mr. McCarthy's truck and never made it into the intersection at Walden and Sheldon, therefore precluding the possibility that he ran the red light. Accordingly, Defendants have failed to meet their burden to show that no material issue of fact remains as related to Mr. Coffed's alleged negligence at the time of the collision. c. Alternatively, any violation of the Vehicle and Traffic laws is excusable Even assuming Mr. Coffed did not properly stop at the stop line on Walden Avenue, any violation of Vehicle and Traffic Law § 1111 ( d) is excusable. There remain questions of fact whether Mr. Coffed violated Vehicle and Traffic Law§ 111 l(d), and whether such violation was excusable under the circumstances at the time. While an unexcused violation of the Vehicle and Traffic law can constitute negligence per se, such violation "places a duty on the offending party to provide a reasonable excuse for its failure to comply with the statutorily imposed standard of care." Zupnick v. Certified Lumber Corp, et al., 851 NYS2d 75 (N.Y. Sup. Ct. Kings County BROWN CHIARI LLP -Page lD- 2007). A violation of a statute may be "excused" where "one [has] exercised reasonable care in an effo11 to comply" with the statute. Aranzullo v. Seidell, 96 AD2d 1048, 1049 (2d Dept. 1983) (defendant's omission excused by evidence that he had exercised reasonable care under "inclement circumstances" in an effort to comply). In this case, the police report comments on the role of sun glare in this collision on several occasions. In sum, it states that the "sun . . . rising in the East . . . could have been a distraction for Eastbound traffic," "the sun was a significant factor in this collision," "[a ]11 Eastbound traffic would have had to deal with a bright unobstructed sun just above their direct line of sight," and that McCarthy indicated the sun made it difficult for him to see. (R. 70, 73, 75, 76). Ultimately, investigators concluded that "a combination of sun glare, the dump truck's height and the bicyclists' [sic] geographical position relative to the dump truck prevented Coffed from observing the red light for Eastbound traffic on Walden Avenue." (R. 76). Accordingly, the record supports the notion that Mr. Coffed did not and could not see the traffic signal, due to both the sun glare and height of the dump truck in relation to him on his bicycle (in line with the conclusions of the police department). In other words, while positioned in the bicycle lane to the right of Mr. McCarthy's dump truck, Mr. Coffed simply would not have had a line of sight to the traffic signal available to him. Further, the "unobstructed sun" likely made it impossible for Mr. Coffed to make out the traffic signal's color. It is completely reasonable that, under such "inclement conditions," Mr. Coffed did not stop or remain stopped right at the stop line because he would have needed to advance to at least the front of Mr. BROWN CHJARI LLP -Page 11- McCarthy' s truck to see the traffic signal and any oncoming traffic, in his efforts to comply with the rules of the road. Further, the law is clear - a "jury may find a violation of the Vehicle and Traffic law [and] simultaneously find that such violation was excused." Streeter v. Kingston, 784 NYS2d 924 (N.Y. Sup. Ct. Onondaga County 2004), citing Stalikas v. United Materials, L.L.C., 306 A.D.2d 810, 811 (4th Dept. 2003) ("[E]ven in the event that the jury found that defendants violated the statute, it is evident that, based upon the nonnegligent explanations of defendants credited by the jury, the jury would have found that nay violation was excused")(emphasis added). Here, even assuming Mr. Coffed did not stop or remain stopped at the stop line, the conditions presented to him at that intersection on the morning of July 2, 2012 were such that, in an attempt to "exercise reasonable care to comply with the statute,'' Mr. Coffed would have needed to advance closer to the intersection in order to gain a line of sight, around Mr. McCarthy's truck, of the traffic signal. Therefore, in the event that Defendants establish a prima facie case of negligence against Mr. Coffed, there is a nonnegligent explanation for any failure to stop at the red light, which excuses such violation. POINT II DEFENDANTS FAILED TO MEET THEIR BURDEN OF PROOF TO SHOW THAT THERE CAN BE NO FINDING OF NEGLIGENCE ON MR. MCCARTHY'S BEHALF It is well settled that every motorist is under a duty to operate their vehicle with reasonable care and "to see that which under that facts and circumstances he should have seen by BROWN CHIARI LLP -Page 12- the proper use of his senses. Baker v. Close, 204 NY 2nd 92 (1912); New York State Pattern Jury Instruction Sections 2:77, 2:77.1, Motor Vehicle Accidents/ Duty Towards Other Motorists; Duffy v. Chautauqua, 225 AD 2nd 261 (4th Dept., 1996) (the determination of contributory negligence is almost always a question of fact and is for the jury to determine in all but the clearest cases). Comparative negligence is defined as the doing of an act or failing to do an act, which a reasonably prudent person would, or would not have done under the circumstances. Because the doctrine requires an analysis of the particular circumstances facing the Plaintiff/ Defendant at the time of the accident, the question of comparative negligence is a question for the jury. Schrader vs. Carney, 180 AD 2nd 200, 209 (4th Dept., 1992). Because there are questions of fact regarding the conduct of the Defendant driver McCarthy, we respectfully request that the Order denying Defendants' Motion for Summary Judgment on the Issue of Negligence in its entirety be affirmed. a. Mr. McCarthy did not exercise due care to avoid colliding with Mr. Coffed Vehicle and Traffic Law § 1163 requires that any person turning a vehicle at an intersection do so only if "such movement can be made with reasonable safety." Further, Vehicle and Traffic Law § 1146 requires drivers to exercise due care "to avoid colliding with any bicyclist ... upon any roadway and shall give warning by sounding the horn when necessary." There is evidence that Mr. McCarthy failed to exercise due care to avoid colliding with Mr. Coffed's bicycle. Mr. McCarthy was aware that there was a bicyclist on the roadway, travelling on the right-side of the road, within one mile of his attempted right-hand tum. Mr. BROWN CHIARI LLP -Page 13- McCarthy testified that once traffic cleared coming across Walden on Sheldon, he looked to his left and looked to his right "at the mirror aml ... didn't see anything." (R. 125, line 9). Yet Mr. McCarthy chose to proceed with his tum without locating that bicycle - he did not know whether the bicycle had turned down another street, stopped at its destination, or, as was the unfortunate reality, directly to his right on the road. However, on all accounts, Mr. Coffed did absolutely everything he could to heighten his visibility while riding. Mr. Coffed's bike was equipped with a working bell and brightly colored stickers. He had a rear-view mirror mounted to the handlebars and three red flashing lights mounted to the back. Further, Mr. Coffed was wearing a health with a head lamp, in addition to reflective clothing. Investigators even noted that Mr. Coffed "went above and beyond" the requirements to ensure his visibility and safety. The record also shows that Mr. Coffed was visible to others on the road. Mr. McCarthy testified that immediately preceding impact, he heard a truck horn sound coming from a westbound-facing truck - that is, someone across Sheldon, on Walden, to the left of Mr. McCarthy's truck, could see Mr. Coffed. Mr. McCarthy further testified that he was stopped for close to one and a half minutes while waiting to make his tum, and that he had seen Mr. Coffed a mile before the light. However, the record is silent as to whether Mr. McCarthy ever looked in his passenger-side (right-side) mirror to see whether the bicyclist he had just passed, was approaching in the bicycle lane (also to his right). Further, while the police report does say that it "seem[ed]" that Mr. Coffed was "just outside" Mr. McCarthy's field of vision at the time of the collision, this does BROWN CHIARI LLP -Page 14- not adequately address why Mr. McCarthy never saw Mr. Coffed approaching his vehicle from behind on the right-hand side when evaluating whether his right-on-retl turn coul