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. 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: March 3, 2016 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATUS OF RELATED ACTION...........................................................................1 STATEMENT OF JURISDICTION..........................................................................2 QUESTIONS PRESENTED......................................................................................3 NATURE OF THE CASE .........................................................................................5 STATEMENT OF FACTS ........................................................................................6 ARGUMENT ........................................................................................................13 A. The Appellate Division failed to view the evidence in a light most favorable to the non-moving party and resolved factual inferences in favor of defendants, which is improper on a motion for summary judgment .......................................................................13 1. Whether Mr. Coffed entered the intersection to cross Sheldon Avenue...................................................................15 2. Whether the traffic signal controlling the traffic on Walden Avenue, was red at the time McCarthy made his right hand turn ................................................................17 3. Whether the defendant cautiously entered the intersection or failed to see what was there to be seen............................18 4. Whether the defendant vehicle’s inoperative rear right turn signal was a proximate cause of the accident...............19 i Page B. An operator of a motor vehicle traveling with the right of way has an obligation to keep a proper look out and to see what can be seen, through the reasonable use of his or her senses, to avoid a collision ...............................................................................................21 C. There can be more than one proximate cause of a motor vehicle accident and the defendant truck’s inoperative right turn signal raises a triable issue of fact as to whether the negligent maintenance of the defendant vehicle was a proximate cause of the subject accident................................................................................................26 CONCLUSION........................................................................................................31 ii TABLE OF AUTHORITIES Page(s) CASES: Alvarez v. Prospect Hospital, 68 NY2d 320 (1986)................................................................................ 13 Asabor v. Archdiocese of New York, 102 AD3d 524 (1st Dept. 2013) .............................................................. 17 Ayotte v. Gervasio, 81 NY2d 1062 (1993).............................................................................. 13 Baker v. Sportservice Corp., 175 AD2d 654 (4th Dept. 1991)......................................................... 28,29 Caldron-Scotti v. Rosenstein, 119 AD3d 722, (2d Dept. 2014) .............................................................. 23 Canales v. Arichabala, 123 AD3d 869 (2d Dept. 2014) ............................................................... 21 Cattan v. Sutton, 120 AD3d 537 (2d Dept. 2014) ............................................................... 21 Cicalese v. Ezequier Burier, 123 AD3d 1078 (2d Dept. 2014) ............................................................. 22 Cochrane v. Owens-Corning Fiberglass Corp., 219 A.D.2d 557 (1st Dept. 1995) ............................................................ 14 Colpan v. Allied Central Ambulette, Inc., 97 AD3d 776 (2d Dept. 2012) ................................................................. 19 Deleon v. New York City Sanitation Dept., 25 NY3d 1102 (2015).............................................................................. 13 iii Page(s) Diener v. Fernandez, 2015 NY Slip Op 30109 (U) (Queens Cty. Sup Ct. 2015)...................... 18 Dollas v. W.R. Grace & Co., 225 A.D.2d 319 (1st Dept. 1996) ............................................................ 14 Forte v. City of Albany, 279 N.Y. 416 (1939)................................................................................ 26 Frey v. Richmond Hill Lumber & Supply, 132 AD3d 803 (2d Dept. 2015) ............................................................... 21 Fried v. Misser, 115 AD3d 910 (2d Dept. 2014) ............................................................... 23 Gause v. Martinez, 91 AD3d 595 (2d Dept. 2012) ................................................................. 26 Gitlin v. Chirinkin, 98 AD3d 561 (2d Dept. 2012) ................................................................. 13 Grant v. Pinero, 215 AD2d 144 (1st Dept. 1995) .............................................................. 29 Grossman v. Spector, 48 AD3d 750 (2d Dept. 2008) ................................................................. 16 Harris v. City of New York, 147 A.D.2d 186 (1st Dept. 1989) ............................................................ 14 Jones v. Pinto, 133 AD3d 634 (2d Dept. 2015) .......................................................... 21,25 Morris v. Lenox Hill Hospital, 232 AD2d 184 (1st Dept. 1996) ......................................................... 20,28 O’Buckley v. County of Chemung, 88 AD3d 1140 (3d Dept. 2011) ............................................................... 26 iv Page(s) Ortiz v. Varsity Holdings, LLC., 18 NY3d 335 (2011)........................................................................... 14,17 Pollack v. Margolin, 84 AD3d 1341 (2d Dept. 2011) ............................................................... 21 Rivers v. Birnbaum, 102 AD3d 26 (2d Dept. 2012) ................................................................. 13 Rodriguez v. CMB Collision Inc., 112 AD3d 473 (1st Dept. 2013) .............................................................. 22 Said v. Aviles, 72 AD3d 1061 (2d Dept. 2010) ............................................................... 16 Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957).................................................................................. 13 Silverman v. Johnson, 94 AD3d 860 (2d Dept. 2012) ................................................................. 26 Stanford v. Smartpicks, Inc., 2015 N.Y. Slip Op. 09670 (2d Dept. 2015)............................................. 26 Steiner v. Dincesen, 95 AD3d 877 (2d Dept. 2012) ................................................................. 26 Szymanski v. Robinson, 234 AD2d 992 (4th Dept. 1996)......................................................... 28,29 Todd v. Godek, 71 AD3d 872 (2d Dept. 2010) ................................................................. 22 Van Scooter v. 450 Trabold Rd, 206 AD2d 865 (4th Dept. 1994)......................................................... 28,29 Vega v. Restani Construction Corp., 18 NY3d 499 (2012)................................................................................ 13 v vi Page(s) Zuckerman v. New York, 49 NY2d 557 (1980)................................................................................ 28 STATUTES: CFR Title 49 - Violation Code 393.19 .............................................................. 10 CFR Title 49 - Violation Code 393.9TS....................................................... 10,26 CFR Title 49 - Violation Code 393.47E ............................................................ 10 CFR Title 49 - Violation Code 393.90 .............................................................. 10 CFR Title 49 - Violation Code 396.47E ............................................................ 10 CPLR § 5601 (a) .................................................................................................. 2 CPLR § 5611 .................................................................................................... 2 New York State Transportation Law § 140-2d.................................................. 10 New York State Transportation Law § 140-2d 14-f .......................................... 26 New York State Vehicle and Traffic Law § 1111 (d) (1).................................. 11 New York State Vehicle and Traffic Law § 1111 (d) (2)........................ 15,16,25 STATUS OF RELATED ACTION Pursuant to Court of Appeals Rule 500.13, appellant, Susan M. Coffed advises that there is no other litigation related to this action. 1 STATEMENT OF JURISDICTION Plaintiff-appellant has an appeal, as of right, of the final order of the Appellate Division, Fourth Department, which reversed the Motion Court’s decision, and granted defendant summary judgment dismissing the plaintiff’s complaint. Jurisdiction for this appeal exists under CPLR § 5601(a) and CPLR § 5611. The issues raised on appeal are preserved and were expressly considered by the Courts below. 2 QUESTIONS PRESENTED: 1. Should the Court be restrained from resolving factual inferences in favor of the moving party on a motion for summary judgment? Answers of the Court below: The Motion Court said yes, and denied defendants’ motion for summary judgment in its entirety. The Appellate Court said no, and the majority opinion made factual determinations in defendants’ favor. 2. When a defendant driver turns right on a red light and strikes a bicyclist, traveling toward the intersection, does defendant’s failure to see what should have been seen raise a triable issue of fact? Answers of the Court below: The Motion Court answered yes, and denied defendants’ summary judgment motion in its entirety. The Appellate Court answered no. 3 3. Does the inoperative condition of a right turn signal on the defendant vehicle, which turned right, striking a bicyclist and killing him, raise a triable issue of fact preventing the court from holding that plaintiff’s conduct was the sole proximate cause of the accident? Answers of the Court below: The Motion Court answered yes, and denied defendants’ summary judgment motion in its entirety. The Appellate Court answered no, and found that the condition of the turn signal was not a proximate cause of the accident, as a matter of law. 4 NATURE OF THE CASE Plaintiff, Susan M. Coffed, as Administrator of the Estate of James B. Coffed, appeals from the order of the Appellate Division, Fourth Department (Scudder, P.J., Peradotto, J. and Valentino, J.), which reversed the decision of the Erie County Supreme Court (Nowak, J.), granting defendants’ motion for summary judgment and dismissing plaintiff’s complaint. The Fourth Department’s Decision and Order contained a written dissent by two Justices (Whelan, J. and Centra, J.). Plaintiff contends that defendants’ motion for summary judgment should be denied in all respects because there are numerous triable questions of fact surrounding the accident, which killed her husband, and that her husband’s actions were not the sole proximate cause of the accident. 5 STATEMENT OF FACTS On July 2, 2012, Mr. Coffed was traveling by bicycle to work when he was struck and killed by a 1998 Ford dump truck at the intersection of Walden Avenue and Sheldon Avenue in the Village of Lancaster. (R.68). The dump truck was being driven by defendant, Mr. McCarthy. (R. 68). The morning of the collision that took Mr. Coffed’s life, Mr. McCarthy was driving the 1998 Ford dump truck to a location unknown to him – he testified that he was following his employer in a convoy to a job site, 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 Avenue to travel eastbound towards 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 claimed that he first saw Mr. Coffed on his bicycle approximately one mile before the intersection of Walden Avenue and Sheldon Avenue, also on the right hand side of the roadway. (R. 119). In fact, Mr. McCarthy testified that he needed to change lanes to get around the bicyclist – Mr. Coffed. (R. 119). Mr. McCarthy was aware that Mr. Coffed was traveling in the same direction as his dump truck on Walden. (R. 115, 119-120). 6 Mr. McCarthy testified that as he approached the Walden – Sheldon intersection, he first saw the traffic light when he was approximately two hundred feet away, and that the light was green at that time. (R. 117, 118). He estimated that he was traveling somewhere between 35 and 38 miles per hour as he approached. (R. 117). Mr. McCarthy testified that he came to a complete stop approximately 100 feet from the light while he waited for his employer, defendant Fulfaro, to make his right turn at the light onto Sheldon Avenue. (R. 118, 119). Mr. McCarthy stated that he was completely stopped for approximately twenty seconds while Mr. Fulfaro made his turn and then proceeded toward the intersection at a speed of anywhere from four to six miles per hour. (R. 120-121). Mr. McCarthy testified that, when he was approximately seventy feet from the light, it turned red and he again came to a complete stop for approximately twenty seconds. (R. 121). He further explained that he crawled up to the light, and was waiting on traffic from Sheldon to cross Walden from his left to his right. (R. 121). Mr. McCarthy testified that he was stopped for a minute and a half waiting for traffic to clear. (R. 124). According to Mr. McCarthy’s testimony in this lawsuit, after the traffic cleared, he attempted to make his right-hand turn onto Sheldon Avenue, while the traffic light was still red. (R. 122-124). However, at the accident scene, Mr. McCarthy initially told the police investigator that he had a green light when he began his turn. (R. 73). McCarthy further testified that he 7 looked right, looked left and looked right again before beginning his turn. (R. 125). Between the time that Mr. McCarthy veered to go around Mr. Coffed on Walden Avenue, and when he made his right hand turn onto Sheldon Avenue, Mr. McCarthy failed to relocate Mr. Coffed, who was riding his bicycle traveling in the same direction. (R. 120-125). Mr. McCarthy testified that there were no intersections between the location where he saw Mr. Coffed traveling in the same direction on Walden Avenue, and the intersection of Walden Avenue and Sheldon Avenue. (R. 119). Furthermore, he testified there was no bicycle lane on Walden Avenue. (R. 115). However, the police report and photographs confirm that Walden Avenue does have a designated bicycle lane. (R. 71, 94-96). As Mr. McCarthy attempted to turn right onto Sheldon Avenue, he heard a truck horn coming from a truck in the westbound lane of Walden Avenue, across the intersection, and felt a slight impact with his vehicle. (R. 126). Mr. McCarthy stopped his truck and exited the vehicle. (R. 126). Mr. McCarthy walked around his vehicle, and saw Mr. Coffed on the ground. (R.126). Mr. McCarthy went over to Mr. Coffed, who was not responsive, but breathing. (R. 127). Mr. Coffed was transferred to St. Joseph’s Hospital in Cheektowaga via ambulance, and died from cardiac arrest and internal bleeding later that day. (R. 36). 8 The Lancaster Police Department reported to the scene and conducted an investigation. (R. 62-96). According to the police report and photographs, Walden Avenue has a well-marked and paved shoulder for both eastbound and westbound lanes. (R. 71, 94-96). The shoulder has markings indicating bicycle traffic is permitted. (R. 70, 71, 95, 96, 115-116). The police photographs show that, after the impact, Mr. Coffed’s bicycle was found lying in the eastbound shoulder lane designated for bicyclists, and within the crosswalk on Walden Avenue. (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. Mr. McCarthy’s first statement to the police following the accident was that he had a green light to proceed eastbound on Walden Avenue. (R. 73). If this were true, it would mean that Mr. Coffed also had a green light to cross Sheldon Avenue and the decedent would have had the right of way, if attempting to travel in that direction. Further, the investigators opined that “the sun was a significant factor in this collision.” (R. 73). According to the police report, “all eastbound traffic would have had to deal with a bright unobstructed sun just above their direct line of sight.” (R. 73). Both McCarthy and Coffed were wearing sunglasses at the time of 9 the collision, and in McCarthy’s statement, he references the sun making it difficult for him to see. (R. 73). An inspection done by the New York State Trooper found that Mr. McCarthy’s dump truck had five equipment violations at the time of the accident, and uniform traffic tickets were issued for violation of the following sections of the New York State Transportation Law §140-2d: 1. 393.19 Inoperative right rear hazard lamp; 2. 393.90 Inoperative right stop lamp; 3. 396.47E Brake out of adjustment-Axle 3 Left; 4. 393.47E Brake out of adjustment-Axle 1 Left; and 5. 393.9TS Inoperative right rear turn signal. (R. 73). The violation for the inoperative right turn signal would have taken the dump truck out of service (R. 73); therefore it should not have been on the road that day. The investigators found that the truck did have an operable turn signal on the dump box, which is located at the top of the vehicle. (R. 73). It is undisputed, however, that the inoperative right turn signal would have been closer to Mr. Coffed’s eye level, and away from the sun glare, as he approached the intersection that led to his death. 10 The investigators also concluded that as a bicyclist, Mr. Coffed “clearly went above and beyond the required measures to insure high visibility and safety.” (R. 73). According to the police report, Mr. Coffed had numerous red flashing lights on the rear of his bicycle, reflective clothing, helmet and head lamp, bright colored stickers, and a rear-view mirror. (R. 73). Based on the facts of this case, Justice Nowak, in the motion court, denied defendants’ motion of summary judgment in its entirety. (R. 7). However, the Appellate Division, Fourth Department majority made several factual determinations when deciding that plaintiff failed to raise a triable issue of fact, and granted defendants’ motion for summary judgment, dismissing plaintiff’s complaint. (R. 5a). Justice Centra and Justice Whalen dissented, finding that, when the evidence was viewed in the light most favorable to the non-moving party, there were issues of fact that precluded summary judgment. (R. 5a-6a). While acknowledging that defendants submitted evidence that Mr. Coffed violated VTL §1111(d)(1), the dissenters, Justice Centra and Justice Whalen, also found that plaintiff submitted evidence raising triable issues of fact. (R. 5a). Justice Centra and Justice Whalen determined that “a jury should resolve the issue, whether Mr. Coffed’s negligence was the sole proximate cause of the accident, and that the issue of comparative negligence is generally a question for the jury to decide.” (R. 6a). 11 Moreover, the dissenters found that the evidence would support the finding that defendant was negligent in his operation of the dump truck, and that McCarthy “failed to see what it should have been seen and to exercise reasonable care under the circumstances to avoid the accident.” (R. 6a). Further, Justice Centra and Justice Whalen did not agree with the majority’s conclusion that “the inoperative condition of the truck’s rear turn signal was not a proximate cause of the accident as matter of law.” (R. 6a). The dissenters specifically held that such a conclusion “requires the resolution of factual inferences in favor of defendants, which is improper on a motion for summary judgment.” (R. 6a). Based on the dissent of two Appellate Justices, plaintiff is entitled to her appeal to this Court, as of right, and respectfully requests that this Court agree with the motion court and the dissenters, Justice Centra and Justice Whalen, by finding that there are triable issues of fact that need to be resolved by a jury, and deny defendants’ summary judgment motion in its entirety. 12 ARGUMENT A. The Appellate Division failed to view the evidence in a light most favorable to the non-moving party and resolved factual inferences in favor of defendants, which is improper on a motion for summary judgment. This Court has consistently held that to grant summary judgment “it must clearly appear that no material and triable issue of fact is presented and that this drastic remedy should not be granted where there is any doubt as to the existence of issues or where the issue is arguable.” Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404 (1957). Indeed, the summary judgment movant bears the heavy burden of establishing “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Deleon v. New York City Sanitation Dept., 25 NY3d 1102, 1106 (2015), citing Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); see also Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993). Moreover, the moving party’s failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers. Vega v. Restani Construction Corp., 18 NY3d 499, 503 (2012). Further, it has long been held that the function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination. See Rivers v. Birnbaum, 102 AD3d 26, 42 (2d Dept. 2012); Gitlin v. Chirinkin, 98 13 AD3d 561 (2d Dept. 2012). Any conflict between plaintiff’s allegations and the documentary evidence merely presents an issue of credibility for resolution at trial. Cochrane v. Owens-Corning Fiberglass Corp., 219 A.D.2d 557, 560 (1st Dept. 1995); Harris v. City of New York, 147 A.D.2d 186, 191 (1st Dept. 1989); Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 325 (1st Dept. 1996). In this case, the majority in the Fourth Department took it upon itself to determine the issues, and interpret the facts and inferences against the non-moving party. Specifically, there are at least four distinct triable issues of fact for the jury in this matter: i) whether Mr. Coffed actually entered the intersection against the red light; ii) whether the traffic control signal was red at the time defendant began making his right turn; iii) whether the defendant cautiously entered the intersection, or failed to see what was there to be seen; and iv) whether the inoperative right turn signal on the rear of the defendant’s vehicle was a proximate cause of the accident. On this motion, the Fourth Department did not properly view the facts in the light most favorable to the non-moving party. Rather, the majority decided all of these questions of fact by crediting the defendants’ inferences in contrast to the court’s obligation when deciding a summary judgment motion. (R. 4a-5a); see Ortiz v. Varsity Holdings, LLC., 18 NY3d 335, 340 (2011). 14 The Fourth Department majority did not uphold the precedent established by this Court by granting summary judgment despite the defendants’ failure to tender sufficient evidence to demonstrate the absence of any material issue or fact. As identified by the dissenters, Justice Centra and Justice Whelan, there are multiple triable issues of fact, which preclude summary judgment in the instant case. (R. 5a-6a). 1. Whether Mr. Coffed entered the intersection to cross Sheldon Avenue It is undisputed that Mr. Coffed’s bicycle was found in the crosswalk of Walden Avenue. (R.78-81). The location of Mr. Coffed’s bicycle in the intersection of Walden Avenue suggests that he may have been attempting to cross Walden Avenue and not Sheldon Avenue as the defendants argue. New York State Vehicle and Traffic Law §1111(d)(2) provides 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 to other traffic lawfully using the intersection. The police photographs clearly show Mr. Coffed’s bicycle in the middle of the crosswalk. (R. 78-81). There is no evidence or testimony that proves what Mr. Coffed’s intentions were at that crosswalk/intersection. Plaintiff maintains that these are factual determinations best left for trial. The presence of Coffed’s bicycle 15 squarely within the crosswalk is some evidence, however, that he intended to utilize the crosswalk and turn left across Walden, in front of the defendant dump truck, thereby having the right of way. (R. 82). Certainly, McCarthy had no way of knowing Mr. Coffed’s intention in the crosswalk – whether Coffed intended to turn left and cross Walden with the green light, or proceed eastbound on Walden – when McCarthy began turning his dump truck on red. (R. 82). This fact alone shows negligence on the part of Mr. 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 entitled to lawfully be within the crosswalk. See Vehicle and Traffic Law §1111(d)(2); see also Grossman v. Spector, 48 AD3d 750 (2d Dept. 2008). As Justice Centra and Justice Whelan correctly discuss, “the position of the bicycle after the accident [raises] an issue of fact whether decedent proceeded into the intersection at all, thereby precluding summary judgment.” (R. 5a). See Said v. Aviles, 72 AD3d 1061, 1062-1063 (2d Dept. 2010). Indeed, the photographic evidence directly contradicts the majority’s conclusion, that Mr. Coffed “proceeded into the intersection against the red light,” as a matter of law. Coffed’s position in the crosswalk at the time of the collision is not determinative, one way 16 or another, if his intended movement past the stop line was to enter the crosswalk, or to proceed through the intersection. (R. 5a, 78-82). 2. Whether the traffic signal controlling the traffic on Walden Avenue, was red at the time McCarthy made his right hand turn Mr. McCarthy initially told police that he had a “green light to proceed eastbound on Walden Avenue.” (R. 73, emphasis added). During his deposition testimony, Mr. McCarthy testified, however, that the light was red when he made his right turn. (R. 124-125). The Fourth Department decided to credit his second statement, and ignore his initial statement, finding that the light was red as a matter of law. (R. 4a). Courts have consistently held that credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are functions of a jury not of a judge. See Asabor v. Archdiocese of New York, 102 AD3d 524 (1st Dept. 2013). This Court has also consistently held that all inferences must be viewed in favor of the non-moving party on a motion for summary judgment. See Ortiz, supra, 18 NY3d at 340. If the light facing Walden Avenue was green, and Mr. Coffed was attempting to cross Sheldon Avenue (as defendants claim) and continue eastbound on Walden Avenue, then Mr. Coffed would have had the right of way. As a result, Mr. McCarthy would have had to yield to any bicyclist heading straight on Walden 17 Avenue in the bicycle lane. In that scenario, Mr. McCarthy would have had to wait for the bicycle to exit the intersection before proceeding with his right turn, and keeping up with his employer’s vehicle traveling ahead. Here, the defendant has, himself, provided inconsistent statements regarding the color of the traffic light controlling the intersection where the accident occurred. This alone raises a question of fact precluding summary judgment, as such varying testimony directly effects which party had the right of way. 3. Whether the defendant cautiously entered the intersection or failed to see what was there to be seen As will be discussed in greater detail in subsection B, infra, the defendant failed to see what was there to be seen, when he struck Mr. Coffed. Mr. McCarthy made his right hand turn despite not being able to relocate Mr. Coffed, who he had seen approximately one mile before, traveling in the same direction. (R.119). This raises a triable issue of fact as to whether Mr. McCarthy was negligent in failing to see what was there to be seen. A defendant aware of a bicyclist in the bicycle lane can be negligent for failing to check before turning into the bicyclist. See Diener v. Fernandez, 2015 NY Slip Op 30109 (U) (Queens Cty. Sup Ct. 2015). As explained by Justice Centra and Justice Whelan, a “jury should determine whether in the exercise of due care, defendant should have anticipated that the bicyclist 18 would be in the bicycle lane.” (R. 6a). See Colpan v. Allied Central Ambulette, Inc., 97 AD3d 776 (2d Dept. 2012). 4. Whether the defendant vehicle’s inoperative rear right turn signal was a proximate cause of the accident. As will be discussed in greater detail in subsection C, infra, there can be more than one proximate cause of a motor vehicle accident. As described in the police report, the defendant vehicle had an inoperative right rear turn signal. (R. 73). The police report also makes it clear that the inoperative turn signal would alone require the defendant vehicle to be taken off of the road. (R. 73). The vehicle did have an operating turn signal on top of the dump box. (R. 73). The location of the inoperative turn signal, however, would have been closer to eye level for Mr. Coffed as he proceeded toward the intersection on his bicycle in the bicycle lane. The position of the working turn signal on the top of the dump box, especially given the undisputed accounts of sun glare that day, provided Mr. Coffed with insufficient notice of the defendant’s intention of turning right onto Sheldon Avenue. Therefore, based on the facts of this case, it would be reasonable for a jury to find that such a violation was a proximate cause of the accident that 19 killed Mr. Coffed. Thus, by determining that the inoperative condition of the truck’s rear turn signal was not a proximate cause of the accident as a matter of law, the Fourth Department majority improperly resolved factual inferences in favor of defendants. (R. 5a); Morris v. Lenox Hill Hospital, 232 AD2d 184, 185 (1st Dept. 1996). Should this Court find that even one of the 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, and summary judgment must be denied. Accordingly, plaintiff respectfully requests an Order of this Court reversing the Fourth Department’s decision granting defendants’ motion for summary judgment on this basis. 20 B. An operator of a motor vehicle traveling with the right of way has an obligation to keep a proper look out and to see what can be seen, through the reasonable use of his or her senses, to avoid a collision. Even accepting defendants’ version of facts as true, defendants are still not entitled to summary judgment in this matter. That is, assuming that Mr. Coffed intended to cross Sheldon Avenue and that traffic on Walden Avenue had a red light; Mr. McCarthy still is not free from fault, as a matter of law. Indeed, “an operator of a motor vehicle traveling with the right of way has an obligation to keep a proper look out and to see what can be seen through the reasonable use of his or her senses to avoid colliding with another vehicle.” Jones v. Pinto, 133 AD3d 634, 635 (2d Dept. 2015); see also Frey v. Richmond Hill Lumber & Supply, 132 AD3d 803 (2d Dept. 2015); Cattan v. Sutton, 120 AD3d 537 (2d Dept. 2014); Canales v. Arichabala, 123 AD3d 869, 870 (2d Dept. 2014); and Pollack v. Margolin, 84 AD3d 1341, 1342 (2d Dept. 2011) (finding that the defendant failed to establish a prima facie case for judgment as a matter of law since the evidence raised triable issues of fact as to whether the defendant driver contributed to the happening of the accident, and that, although the defendant driver had the right of way and was entitled to anticipate the plaintiff would obey the traffic laws, “the defendant driver also had a duty to use reasonable care to avoid a collision”). 21 In Todd v. Godek, 71 AD3d 872 (2d Dept. 2010), the Appellate Court reversed the motion court’s decision, and denied the defendants’ motion for summary judgment. There, the defendant driver was traveling straight, and was struck by a vehicle turning left. Despite having the right of way, the Appellate Court found that the defendant driver failed to exercise reasonable care to avoid a collision with another vehicle already in the intersection, and that the issue of comparative negligence was a question to be decided by the jury. Id. In Rodriguez v. CMB Collision Inc., 112 AD3d 473 (1st Dept. 2013), the Appellate Division reversed the motion court’s decision, and denied summary judgment by determining that triable issues of fact remained as to whether the motor vehicle accident resulted from the defendant’s failure to observe the plaintiff’s vehicle until the time of impact. In Cicalese v. Ezequier Burier, 123 AD3d 1078 (2d Dept. 2014), the defendant waited at an intersection to turn left, and the traffic signal changed from green to yellow to red, at which time he began to turn. As he was turning, his vehicle was struck by a co-defendant which was traveling in the opposite direction. Id. The Appellate Court reversed the motion court, and denied summary judgment, holding that the operator traveling with the right of way, failed to establish as a matter of law that his co-defendant’s conduct was the sole proximate cause of the 22 accident, or that he was free from fault, in his failure to keep a proper lookout, and to see what was there to be seen. Id. In Caldron-Scotti v. Rosenstein, 119 AD3d 722, (2d Dept. 2014), the Appellate Division reversed the motion court, and denied defendant’s motion for summary judgment, finding that the defendant driver, despite having the right of way, did not establish his freedom from comparative negligence. The court found that there was a triable issue of fact as to whether the defendant should have seen the plaintiff’s vehicle as it made the left turn with time to take evasive action and respond. Id. In Fried v. Misser, 115 AD3d 910 (2d Dept. 2014), the plaintiff-bicyclist was struck by a vehicle owned and operated by the defendant, as plaintiff exited his driveway. Plaintiff had no recollection of the details of the accident. Id. The Appellate Division reversed the motion court’s decision, and denied defendant’s motion for summary judgment because the defendant, despite traveling with the right of way, had an obligation “to keep a proper look out and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles.” Id. In that case, the defendant admitted that he did not see plaintiff prior to impact, and only realized that there was an accident when Plaintiff’s helmet hit his windshield. Id. 23 In this case, like those cases cited above and their related progeny, defendants have failed to establish that they are entitled to summary judgment as a matter of law. Even when crediting McCarthy’s version of facts, and assuming that he had the right of way at the time of the accident, he cannot establish that he is free from fault based on the fact that he failed to see Mr. Coffed until the time of impact. (R. 125-126). This is especially true since McCarthy testified that he observed Mr. Coffed riding his bicycle approximately one mile prior to the intersection. (R. 119). Defendant also acknowledged that there were no intersections between the location where he saw Mr. Coffed, and the point of impact at the intersection of Walden and Sheldon. (R. 119-120). In fact, Mr. McCarthy testified that he needed to veer around Mr. Coffed while traveling in the same direction. (R. 119-120). Despite knowing that Mr. Coffed was riding his bicycle eastbound, Mr. McCarthy failed to identify where Mr. Coffed was located prior to turning his dump truck, through a red light, onto Sheldon Avenue. (R. 125-126). Further, Mr. McCarthy testified that prior to beginning his right hand turn: “I looked to my right at the mirror and didn’t see anything” (R. 125), then “I looked to my left, I looked to my right again I didn’t see anything and I proceeded through the intersection.” (R. 125). When a driver is turning right on red, the driver has the obligation to make sure the intersection is clear before proceeding with his turn. Indeed, a driver turning right on red needs to enter the intersection with 24 caution and the understanding that other vehicles may have the right of way in the intersection. NY VTL §1111(d)(2). Based on the testimony that Mr. McCarthy looked but did not see Mr. Coffed, there exists a triable question of fact as to whether Mr. McCarthy failed to keep a proper look out and to see what can be seen through the reasonable use of his or her senses to avoid a collision. See Jones v. Pinto, supra, 133 AD3d at 635. On this basis alone, defendants’ motion for summary judgment fails, and must be denied. 25 C. There can be more than one proximate cause of a motor vehicle accident and the defendant truck’s inoperative right turn signal raises a triable issue of fact as to whether the negligent maintenance of the defendant vehicle was a proximate cause of the subject accident. It is obvious that there can be more than one proximate cause of a motor vehicle accident. Forte v. City of Albany, 279 N.Y. 416 (1939). The issue of comparative fault is generally a question for the trier of fact. Stanford v. Smartpicks, Inc., 2015 N.Y. Slip Op. 09670 (2d Dept. 2015); see also Silverman v. Johnson, 94 AD3d 860 (2d Dept. 2012); O’Buckley v. County of Chemung, 88 AD3d 1140 (3d Dept. 2011); Steiner v. Dincesen, 95 AD3d 877 (2d Dept. 2012); Gause v. Martinez, 91 AD3d 595 (2d Dept. 2012). In this case, it is undisputed that the defendant vehicle had an inoperative right rear turn signal (R. 73), which was in violation of New York State Transportation Law §140-2d 14-f, violation code 393.9TS. (R. 73). It is also undisputed that violation 393.9TS, inoperative right rear turn signal, “would have taken the dump tuck out of service.” (R. 73). Thus, the vehicle should not have been on the road that day. Mr. McCarthy was issued a uniform traffic ticket for illegally operating his vehicle with an inoperative right rear turn signal. (R. 73). Although the vehicle had an operating turn signal and brake lamp on the top of the dump box, the right rear turn signal on the truck would have been closer to eye level for Mr. Coffed and provided him adequate warning of the defendant’s 26 intention to turn right at the intersection of Walden and Sheldon. Moreover, at the top of the dump box, the operating turn signal was at an elevation and in the direction of the glaring and blinding sun. (R. 73). It is undisputed that at the time of the accident that the sun was a significant factor in this collision (R. 75), as all eastbound traffic would have had to deal with a bright unobstructed sun, just above the direct line of sight including directly above the dump box. (R. 73). It is also undisputed that Mr. Coffed was an avid bicyclist, who rode his bicycle to work each day, and that he “went above and beyond the required measures to ensure high visibility and safety.” (R. 76). He had numerous red flashing lights on the rear of his bicycle, reflective clothing, helmet and head lamp, bright colored stickers, and a rear view mirror. (R. 76). Given Mr. Coffed’s biking experience, and almost obsessive devotion to bicycle safety, it is obvious that he would have checked the rear turn signal on the defendant vehicle prior to reaching the intersection of Walden and Sheldon on the morning that he died. (R. 73). Had the turn signal indicated the defendant truck’s intention to make a right hand turn, Mr. Coffed would have had the required warning that defendant intended to turn into Mr. Coffed’s path. However, the inoperative right turn signal on the rear of the truck deprived Mr. Coffed of that opportunity, and was a factor in the accident which caused his death. 27 As there can be more than one proximate cause of a motor vehicle accident, the defendant’s undisputed failure to maintain his vehicle in proper working condition, specifically by illegally driving the vehicle despite an inoperative rear right turn signal, raises a triable issue of fact as to fault of the defendant. See Morris v. Lenox Hill Hospital, 232 A.D.2d at 185. Further, while the Lancaster Police Department concluded that investigators found no criminal culpability on the part of McCarthy, the investigators did not comment as to the potential civil liability on the part of McCarthy. (R. 75-76). In any event, the proponent of a motion for summary judgment is required to submit evidence, in admissible form, that entitles them to judgment as a matter of law. See Zuckerman v. New York, 49 NY2d 557, 562 (1980). A police report is admissible to the extent that it contains facts observed by the officer who prepared it, but is “generally not admissible to the extent that it contains opinions or conclusions drawn from the facts.” Szymanski v. Robinson, 234 AD2d 992 (4th Dept. 1996), citing Van Scooter v. 450 Trabold Rd, 206 AD2d 865, 866 (4th Dept. 1994); and Baker v. Sportservice Corp., 175 AD2d 654 (4th Dept. 1991). Nevertheless, defense counsel attempts to turn the police investigators, who conducted a mandatory criminal investigation into this fatality accident, into defense experts in this civil lawsuit. In addition, and notably so, the police department engaged in an investigation into criminal conduct, and not civil 28 liability. (R. 75-76). As such, any conclusions regarding McCarthy’s criminal conduct pertain only to, and should be received only to the extent that it is some evidence of, whether or not McCarthy violated any applicable rule of motor vehicle safety or operation. The ultimate conclusions of the police investigators have no bearing on this motion. Their conclusions were in relation to a different legal standard, and were not meant to assess the relative culpable conduct and/or negligence of the parties involved in this accident. As such, while the Court may and should consider the findings of fact found in the investigators’ reports, the investigators’ ultimate conclusions regarding criminal conduct should have no bearing on the outcome of this motion and should not be considered. See Szymanski, 234 AD2d at 992; see also Van Scooter, 206 AD2d at 866 (“deputy’s opinion testimony concerning … cause of accident invaded jury’s exclusive province to determine factual issues”); Baker, 175 AD2d at 654 (“conclusions drawn by the officers about causation, to the extent that they were based upon conjecture and not personal observation, were not admissible”). This is particularly true where the police report presents two possible, but conflicting, conclusions. See Grant v. Pinero, 215 AD2d 144, 145 (1st Dept. 1995). Specifically, the at-issue police report concludes that a “combination of sun glare, the dump truck’s height and the bicyclists’ [sic] geographical position 29 relative to the dump truck prevented Coffed from observing the red light for Eastbound traffic on Walden Avenue … [d]espite Coffed’s extraordinary safety measures and biking experience” (R. 76). Yet, that same report determines that the inoperative turn signal, which could have taken the truck out of service, but for the operable turn signal at the top of the box, was not a factor in causing the collision. That is, a light assembly on defendants’ truck, which was in line with the traffic signal Mr. Coffed also could not see, in part due to sun glare and his position in relation to the truck, somehow did not contribute to the collision. For the reasons stated above, plaintiff respectfully requests that the Court reverse the Fourth Department’s decision and deny defendants’ motions for summary judgment in their entirety. 30 CONCLUSION A driver with the right of way is entitled to anticipate that the other driver will obey the traffic laws requiring him or her to yield. However, there can be more than one proximate cause of a motor vehicle accident and thus, a party moving for summary judgment on the issue of liability in an action alleging negligence must establish prima facie, not only that the other party was negligent, but that the moving party was free from fault. The issue of comparative fault is generally a question for the trier of fact. In this case, there remain at least four distinct triable issues of fact, which preclude summary judgment. The triable issues of fact include: (i) whether Mr. Coffed was legally in the intersection, crossing Walden Avenue, at the time of impact; (ii) whether the traffic controlling device was red, leading to a question of who actually had the right of way at the time of impact; (iii) whether the defendant driver failed to see what was there to be seen by the use of his reasonable senses, when he failed to see Mr. Coffed on his bicycle despite observing Mr. Coffed approximately one mile earlier, traveling in the same direction; and (iv) whether the defendant driver’s failure to maintain his vehicle in working condition, by illegally driving the truck with an inoperative right rear turn signal, was a proximate cause of the accident. Since material triable issues of fact exist, the 31 Appellate Division's Order granting defendant's motion for summary judgment should, therefore, be reversed. 32 Respectfully Submitted, Angelo S. Gambino, Esq. BROWN CHIARI LLP Attorneys for Plaintiff-Appellant 2470 Walden Avenue Buffalo, New York 14225-4751 (716) 681-7190