Mary T. Heltz, Appellant,v.Bruce S. Barratt et al., Respondents.BriefN.Y.December 10, 20140 0 To be Argued by: SCOTT R. HAPEMAN, ESQ. Estimated Time for Argument: (10 Minutes) STATE OF NEW YORK Supreme Court APPELLATE DIVISION—FOURTH JUDICIAL DEPARTMENT Appellate Division Docket Number: CA 13-01101. MARY T. HELTZ, Plaintiff-Appellant, vs. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Defendants-Respondents. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Third-Party Plaintiffs-Respondents, vs. GEORGE M. HELTZ, Third-Party Defendant-Respondent. (Appeal No. 1). Appellate Division Docket Number: CA 13-01102. MARY T. HELTZ, Plaintiff-Appellant, vs. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Defendants-Respondents. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Third-Party Plaintiffs-Respondents, vs. GEORGE M. HELTZ, Third-Party Defendant-Respondent. (Appeal No. 2). Erie County Index No.: I2010-009916. BRIEF FOR PLAINTIFF-APPELLANT In Appeal Nos. 1 and 2 PERSONIUS MELBER LLP Attorneys for Plaintiff-Appellant 2100 Main Place Towers 350 Main Street Buffalo, New York 14202 Telephone: (716) 855-1050 SCOTT R. HAPEMAN, ESQ. Of Counsel BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS PRELIMINARY STATEMENT ................................................ 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS .................................................... 4 ARGUMENT ................................................................ 8 POINT I. APPEAL OF MOTION FOR SUMMARY JUDGMENT A) STANDARD OF REVIEW .................................... 8 B) THET~COURTF~EDTORECOGMZETHATTHERE IS A QUESTION OF MATE~ FACT REGARDING THE NEGLIGENCE OF BARRATT ................................. 8 C) THE T~ COURT F ~ED TO VIEW THE EVIDENCE IN A LIGHT MOST FAVORABLE TO HELTZ BY GIVING FULL CREDIT TO BARRATT'S CLAIM HE HAD INSUFFICIENT TIME TO AVOID THE CRASH ............................... 12 D) ADDITIONAL EVIDENCE OF BARRATT'S NEGLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 POINT II. APPEAL OF MOTION TO RENEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A) STANDARD OF REVIEW ................................... 16 B) THE NEW FACTS OFFERED IN SUPPORT OF HELTZ'S MOTION FOR LEAVE TO RENEW WERE SUBSTANTIAL . . . . . . . 17 C) THE T~ COURT ERRONEOUSLY F ~ED TO RECOGNIZE ITS DISCRETION TO CONSIDER HELTZ'S MOTION FOR LEAVE TO RENEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION ............................................................ 21 TABLE OF AUTHORITIES Page(s) CASES: Bush v. Blankenheim, 254 A.D.2d 736, 678 N.Y.S.2d 427 (4th Dept. 1998) .......................... 9 Cooley v. Urban, 1 A.D.3d 900, 767 N.Y.S.2d 546 (4th Dept. 2003) ...................... 11,13,14 Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604 (2nd Dept.2005) ........................... 9 Freese v. Schwartz, 203 A.D.2d 513, 611 N.Y.S.2d 37 (2nd Dept. 1994) ........................... 8 Galvin v. Zacholl, 302 A.D.2d 965, 755 N.Y.S.2d 175 (4th Dept. 2003) .................. 12,13,14,15 Garner v. Latimer, 306A.D.2d209, 761 N.Y.S.2d657(1 51 Dept.2003) ........................ 16,19 Kirby v. Suburban Elec. Engineers Contractor, Inc., 83 A.D.3d 1380, 919 N.Y.S.2d 698 (4th Dept. 2001) ....................... 16,18 Larabee v. Governor of the State ofNew York, 37 Misc.3d 748, 950 N.Y.S.2d 892 (N.Y. Cty. 2012) ......................... 16 Matter of Suffolk County Dept. of Social Services v. James M, 83 N.Y.2d 178, 608 N.Y.S.2d 940 (1994) ................................... 8 Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151 (1985) ................................. 8,12 Nevarez v. S.R.M Management Corp., 58 A.D.3d 295, 867 N.Y.S.2d 431 (1st Dept. 2008) ....................... 9,11,15 Pomietlasz v. Smith, 31 A.D.3d 1173, 818 N. Y.S.2d 709 (4th Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 -11- Page(s) Robinson v. Consolidated Rail Corp., 8 A.D.3d 1080, 778 N.Y.S.2d 387 (4th Dept. 2004) ........................ 16,18 Rogers v. Edelman, 79 A.D.3d 1803, 913 N.Y.S.2d 854 (4th Dept. 2010) ....................... 12,13 Smith v. Cassidy, 93 A.D.3d 1306, 93 A.D.3d 1306 (4th Dept. 2012) ........................... 19 Tibbits v. Verizon New York, Inc., 40 A.D.3d 1300, 836 N.Y.S.2d 727 (3rd Dept. 2007) ....................... 19,20 Tishman Construction Corporation ofNew Yorkv. City ofNew York, 280 A.D.2d 374,720 N.Y.S.2d 487 (P1 Dept. 1996) .......................... 16 Wallace v. Kuhn, 23 A.D.3d 1042, 804 N.Y.S.2d 187 (4thDept. 2005) .................. 12,13,14,15 Zuckerman v. City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 (1980) ................................... 8 STATUTES: CPLR 2221 ................................................................ 16 CPLR 2221(e) ........................................................... 16,19 -111- PRELIMINARY STATEMENT On October 30, 2009, as the vehicle occupied by Plaintiff Mary T. Heitz, ["Heitz"] crossed East Centerville Road in the Town of Rushford, the vehicle was impacted at the rear passenger quarter panel by a tractor trailer operated by Defendant Bruce S. Barratt ["Barratt'] and owned by Defendant Erie Logistics LLC ["Erie"]. As the result of injuries to her shoulder and neck sustained in this accident, Heitz filed an action grounded in negligence against Barratt and Erie. This is a consolidated appeal of two Orders of the Supreme Court, Erie County (Hon. John M. Curran, J.S.C.). The first Order granted summary judgment to Barratt and Erie. The second Order denied the later motion by Heitz for leave to renew her opposition to Barratt's and Erie's summary judgment motion. The trial court's October 9, 2012 Order granting summary judgment should be reversed as there is a material question of fact regarding the negligence of Barratt. The evidence demonstrates that Barratt had sufficient time to avoid the collision with the Heitz vehicle, but failed to do so, and that Barratt otherwise failed to keep a proper lookout for the Heltz vehicle. There is also evidence that Barratt's undisputed excessive speed contributed to the collision. Given these facts, the trial court erred in fully crediting and placing categorical reliance upon Barratt's self-serving claim that the Heitz vehicle pulled out directly in front of his tractor trailer, leaving him no time to avoid the accident. The trial court's October 9, 2012 Order should, accordingly, be reversed and Plaintiff's claims of negligence reinstated. The trial court's March 20, 2013 Order, which denied Heitz's motion to renew her opposition to the Barratt!Erie summary judgment motion, should also be reversed as the additional evidence submitted by Heltz established with mathematical precision that Barratt had more than six ( 6) 1 seconds to avoid the collision, but failed to brake, alter his tractor trailer's direction oftravel, or take any other action until only one second before impact. The trial court erred by not considering this additional evidence, as there was a reasonable justification for its submission, and by failing to recognize its discretionary authority on a motion to renew. 2 QUESTIONS PRESENTED The following questions should be addressed by the Appellate Division: 1. Does the evidence showing Barratt had sufficient time to avoid the collision, and that Barratt was speeding, raise a question of material fact with respect to Barratt's negligence? Supreme Court Answer 1: No. 2. Did Supreme Court apply an incorrect standard on Barratt's and Erie's summary judgment motion by viewing the evidence in a light most favorable to the moving parties? Supreme Court Answer 2: No. 3. Did Supreme Court erroneously overlook its discretion to grant the motion to renew based upon the full and reasonable justification asserted by Heltz? Supreme Court Answer 3: No. 3 STATEMENT OF FACTS On October 30, 2009, Heltz was a passenger in a Ford Escape driven by her husband, third- party defendant George Heltz. (R.76-79, 168-169) The Heitz vehicle was traveling north on East Centerville Road in the Town ofRushford, NY. (R.76-79, 170-171) Just prior to the collision, Barratt was driving a 2007 International tractor trailer in the course of his employment with defendant Erie Logistics, LLC in a westerly direction on State Route 243, heading toward the intersection with East Centerville Road. (R.76-79, 178-180) East Centerville Road is regulated by a stop sign at its intersection with State Route 243. (R.171) The speed limit is 30 mph. (R.173) There is no stop sign nor traffic signal for traffic traveling on State Route 24 3 at this intersection. (R.171) The speed limit on Route 24 3 is 55 mph. (R.173) At his deposition, George Heltz testified that, while traveling north on East Centerville Road, he brought his vehicle to a complete stop at the State Route 243 intersection. (R.193) He looked both left and right on State Route 24 3, but did not observe any vehicles approaching the intersection. (R.194) Mr. Heitz then moved his vehicle forward in an effort to better see the traffic approaching the intersection on State Route 243, stopped again, and once more looked both left and right. (R.195) Mr. Heitz did not see any traffic on State Route 243 during either stop at the intersection. (R.19 5) He then proceeded across the intersection. (R.196) Barratt, who was able to see the Heitz vehicle, described George Heltz' s acceleration from the stop sign through the intersection as standard, and neither fast nor aggressive. (R.188) The Heltz vehicle traversed across an eight foot paved shoulder and fully across the eastbound lane of State Route 243. (R.182, 186-187) After fully entering the westbound lane of 4 State Route 24 3, the vehicle was struck by the Erie tractor trailer being driven by Barratt. (R. 7 6-79, 187) The right front fender of the truck struck the right rear quarter panel of the Heitz vehicle, behind the rear wheel. (R.l89, 200) The Heitz vehicle immediately spun approximately 450° before coming to a stop on the north side of the intersection. (R.198) Barratt first observed the Heitz vehicle when it was stopped at or near the stop sign at East Centerville Road, and before it entered the intersection. (R.l83) Barratt's tractor trailer was as much as a quarter of a mile from the intersection when he first saw the Heitz vehicle. (R.184) He then observed the Heitz vehicle continuously until the time of the collision. (R.186) Even th,ough his tractor trailer was still, according to Barratt, "a couple hundred feet" from the intersection, when the Heitz vehicle entered, (R.185) he did not sound the hom of the tractor, nor take any evasive action to avoid a collision. (R.186) It was not until the rear of the Heitz vehicle had crossed into the westbound lane of State Route 243 that Barratt fmally took some action to avoid a collision by applying his brakes and thereafter turned the tractor trailer to the left. (R.187-188, 202) Barratt testified that State Route 243 has two lanes, one in each direction. There is a paved shoulder on each side of the road, and each shoulder is approximately eight feet wide. (R.l82) Driving in the westbound lane and approaching the intersection with East Centerville Road, State Route 24 3 makes a gradual turn with a slight upgrade. (R.181) Barratt admitted that he was speeding in the moments leading up to the collision. He estimated his speed at 57 mph. (R.184) The vehicle's computerized data recorder, or black box, which was part of the truck's onboard computer system, reflects that he was actually traveling as fast as 64 mph in his approach to the intersection. (R.202) Five seconds before impact, the truck's speed was 61 mph, and the throttle was engaged at forty-eight percent (48%). At two seconds before impact, Barratt's speed was still 5 60 miles per hour. The throttle was engaged at forty-seven percent ( 4 7% ). (R.202) Despite Barratt's testimony that he observed the Heitz vehicle cross both the eight foot paved shoulder and eastbound lane of State Route 24 3, and then proceeded across the westbound lane of State Route 24 3, the black box report discloses that he did not engage the brakes of his tractor trailer until one second before the accident. (R.l86, 188, 202) The above facts are established by evidentiary proof in the record independent of any expert analysis. Following the granting of Barratt's and Erie's summary judgment motion, Heitz caused Thomas C. Onions, a Board Certified Forensic Examiner and certified accident reconstructionist, to conduct an expert analysis of the collision. This analysis formed the basis for Heitz's motion to renew. Mr. Onions found that the Heitz vehicle traversed a distance of approximately 105 feet between the stop sign at State Route 243 and the point of impact. (R.252) It took the Heitz vehicle between 6.3 and 6.6 seconds to travel this distance. (R.252) Based on Barratt's acknowledgment that he observed the Heitz vehicle continuously during this period, Mr. Onions determined that Barratt had the same amount oftime, 6.3 to 6.6 seconds, to respond to the Heitz vehicle's crossing of State Route 243. (R.253) When compared to the black box evidence, which demonstrates Mr. Barratt did not take any action until touching the truck's brakes one second before impact, Mr. Onions opines that Barratt's five second delay before taking evasive action to avoid colliding with the Heitz's vehicle was a competent producing cause ofthe accident. (R.253, 255, 258) Mr. Onions observed that Barratt either saw the Heitz vehicle, as he testified, and failed to respond appropriately, or simply failed to timely observe the Heitz vehicle until one second before impact, meaning his testimony to the contrary was false. (R.256-258) 6 Mr. Onions also opined that the excessive speed ofBarratt's tractor trailer was a competent producing cause of the accident because it lengthened the stopping distance required to avoid the collision by 51 feet. (R.251, 254) That additional stopping distance is especially significant because the Heitz vehicle had virtually completed its traverse of the intersection when the passenger side of the vehicle, behind the rear wheel, was struck by the comer of Barratt's truck. (R.251) As a result of the collision, Heitz suffered serious injuries, including an impairment of her shoulder which required arthrosporic surgery and damage to her vertebrae, which required fusion surgery at multiple levels. (R.l59) This action was initiated to recover damages for the serious personal injuries suffered by Heltz. 7 ARGUMENT POINT I. APPEAL OF MOTION FOR SUMMARY JUDGMENT A) STANDARD OF REVIEW The function of the Court in deciding a motion for summary judgment is to determine if triable issues of fact exist. See, Matter of Suffolk County Dept. of Social Services v. James M, 83 N.Y.2d 178, 608 N.Y.S.2d 940 (1994). A motion for summary judgment should be denied ifthe Court has any doubt as to the existence of a triable issue of fact. Freese v. Schwartz, 203 A.D.2d 513, 611 N.Y.S.2d 37 (2nd Dept. 1994). This Court has previously acknowledged that summary judgment is a drastic remedy, and that there is a considerable reluctance to grant this relief in negligence actions. Pomietlasz v. Smith, 31 A.D.3d 1173, 818 N.Y.S.2d 709 (4th Dept. 2006). When deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, and must give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence. Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151 (1985). Utilizing these well-known standards, despite varying versions of how the collision occurred, the Court must presume the truth of the facts as asserted by Heitz for the purpose of this appeal. B) THE TRIAL COURT FAILED TO RECOGNIZE THAT THERE IS A QUESTION OF MATERIAL FACT REGARDING THE NEGLIGENCE OF BARRATT In order to obtain summary judgement, Barratt and Erie were required to affirmatively establish as a matter oflaw that they were not guilty of any negligence with respect to the happening of the accident. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). 8 Summary judgment on the issue of negligence is only appropriate when the "facts clearly point to the negligence of one party without any fault or culpable conduct by the other party." Bush v. Blankenheim, 254 A.D.2d 736~ 736, 678 N.Y.S.2d 427,428 (4th Dept. 1998). Here, the trial Cdurt erroneously found that the collision was solely the fault of George Heitz and completely overlooked the failure of Barratt to exercise due care as his tractor trailer approached the intersection of State Route 24 3 and East Centerville Road. "[U]nder the doctrine of comparative negligence, a driver who lawfully enters an intersection may ·still be partially at fault for an accident if he or she fails to use reasonable care to avoid the collision with another vehicle in the intersection." Nevarez v. S. R. M Management Corp., 58 AD 3d 295, 298, 867 N. Y.S.2d 431, 433 (1st Dept. 2008) (internal quotations and citations omitted). It has been routinely held that there can be more than one proximate cause of an accident. Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604 (2nd Dept. 2005). "A driver with the right-of-way has a duty to use reasonable care to avoid a collision." 23 A.D.3d at 427, 805 N.Y.S.2d at 605. In opposition to the motion for summary judgment brought by Barratt and Erie, Heitz demonstrated that, at minimum, there is a question of fact regarding Barratt's failure to use reasonable care to avoid the collision with the Heitz vehicle. These questions must be determined by a trial jury following a complete evidentiary presentation by all parties. Barratt had sufficient time and opportunity to avoid the accident, yet failed to do so. There is evidence demonstrating that he failed to take appropriate action to avoid the collision after observing the Heitz vehicle, and that he otherwise failed to properly observe the Heitz vehicle. Each of these derelictions is a sufficient contributing cause of the accident and requires a reversal of the trial court's Order granting summary judgment. 9 A fair reading of the evidence in the Record reveals that Barratt observed the Heitz vehicle stop at the intersection of East Centerville Road and State Route 243 before accelerating in a typical or normal manner. Despite these observations, Barratt took no immediate action. He next observed the Heitz vehicle traverse the eight foot wide shoulder of State Route 243, as well as entire oncoming eastbound lane of State Route 243. He still did not react. Only after the Heitz vehicle crossed the westbound lane did Barratt take any action to slow the speed of his tractor trailer, a single second before impact. The black box data shows Barratt was still engaging the throttle until this final second before impact. By then, the rear end of Heitz vehicle had almost fully traversed the westbound lane of State Route 243. Barratt had sufficient time and opportunity to avoid the collision with the Heitz vehicle. This is especially true given the location of contact with the Heitz vehicle. Because the right front fender of Mr. Barratt's tractor trailer struck the right rear quarter panel of the Heitz vehicle behind the rear wheel, the collision was a near miss and only a small difference in Mr. Barratt's reaction would have avoided the crash. Had Barratt taken action one or two seconds earlier, the collision would probably have been avoided. In the alternative, the distance the Heitz vehicle traveled after being seen at the stop sign by Barratt, coupled with the irrefutable evidence that Barratt did not react to the Heitz vehicle until one second before impact, demonstrates he simply failed to properly observe the Heitz vehicle as it entered the intersection and, therefore, breached his duty to keep a proper lookout. This evidence independently raises a question of fact regarding Barratt's negligence, and directly refutes his testimony regarding his observations of the Heitz vehicle. 10 In Cooley v. Urban, 1 A.D.3d 900, 767 N. Y.S.2d 546 (4th Dept 2003), the Fourth Department upheld the denial of summary judgment in a similar circumstance, fmding that the six to seven foot distance traveled by the crossing vehicle occupied by the Plaintiff gave the defendant ample opportunity to avoid the collision. Moreover, in Nevarez v. S.R.M Management Corp., 58 A.D.3d. 295, 297, 867 N.Y.S.2d 431, 433 (1st Dept. 2008), the denial of summary judgment was affirmed based upon both the distance traveled by the crossing vehicle after its observation and the point of impact on the crossing vehicle, which was broadsided. In fact, the Nevarez case is the most factually similar of all cases cited by the parties. In both Nevarez and the case at bar, the plaintiff vehicle came to a full stop at a stop sign, looked both left and right and observed no cars approaching on the cross street. As the plaintiff vehicle in each case drove through the intersection, they were struck by a vehicle which was not controlled by a traffic control device. In each case, the defendant moved for summary judgment arguing the plaintiff vehicle failed to yield the right-of-way. The Nevarez Court determined that there remained material questions offact regarding the failure of the moving party to exercise reasonable prudence when entering the intersection. TheN evarez Court also found there was a question of fact which required denial of summary judgment because there was a dispute over which vehicle, in fact, had the right-of-way at the intersection. Nevarez, 58 A.D.3d at 297, 867 N.Y.S.2d at 433. Although the First Department spoke in terms of"who had the right-of-way," this portion of the Nevarez decision is nothing more than an application of the Cooley principal, i.e. did the driver seeking summary judgment have the time and opportunity to avoid the collision. In Nevarez, the plaintiff vehicle entered the intersection first, leading the First Department to conclude that this fact alone suggested ample time to avoid the collision. The same facts are presented here, where it is undisputed that the Heitz vehicle entered 11 the intersection first. (R.185) In both cases, this evidence could be relied upon by a jury to conclude that the driver seeking summary judgment had ample time to avoid the collision, yet failed to do so. C) THE TRIAL COURT FAILED TO VIEW THE EVIDENCE IN A LIGHT MOST FAVORABLE TO HELTZBY GIVING FULL CREDIT TO BARRATT'S CLAIM HE HAD INSUFFICIENT TIME TO A VOID THE CRASH. In granting Barratt's and Erie's summary judgment motion, the trial court made the following central determination- "Defendant had no duty to anticipate that the SlN would pull out from the stop sign directly in front of his vehicle." (R.18) In making this determination, the Court erroneously accepted Barratt's self-serving claim that the Heitz SlN was "directly in front of his vehicle" as it entered the intersection; leaving no time or opportunity to avoid the collision. This fmding completely ignores the evidence in the Record outlined supra, which demonstrates, that Barratt had ample time and opportunity to avoid the accident. The trial court's handling of the evidence at the summary judgment stage directly contravenes the Court of Appeals mandate to view the evidence in the light most favorable to the non-moving party and give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence. Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151 (1985). The trial court found that Barratt and Erie were entitled to summary judgment based upon the reasoning of Wallace v. Kuhn, 23 A.D.3d 1042, 804 N.Y.S.2d 187 (4th Dept. 2005), which reversed an Order of the Supreme Court Erie County, John M. Curran J.S.C.; Rogers v. Edelman, 79 A.D.3d 1803,913 N.Y.S.2d 854 (4th Dept. 2010); and, Galvin v. Zacholl, 302A.D.2d 965,755 N.Y. S .2d 1 7 5 (4th Dept. 2003 ). Each of these cases expresses the valid legal principle that a motorist is entitled to anticipate that another motorist will obey the traffic laws that require them to yield the 12 right-of-way. In each of theses cases, it was found that the moving party had no time to react because of the sudden appearance ofthe crossing vehicle and, thus, application ofthis principle was appropriate. ·The instant matter is distinguishable as there is substantial evidence that Barratt had ample time to avoid the collision. Put simply, the Heitz vehicle did not dart out or suddenly appear directly in front of the Barratt tractor trailer. Barratt observed the Heitz vehicle long before entering the intersection, and continued to watch the Heitz's SUV all the way through the intersection to the point of impact. Unlike Barratt, the defendant in Wallace V Kuhn did not have time nor opportunity to avoid the accident. Even if that defendant had been speeding, the Court found this culpable conduct would not have been a proximate cause of that crash. Wallace v. Kuhn, 23 A.D.3d 1042, 1044, 804 N.Y. S .2d 187, 188. Contrary to the circumstance encountered by Barratt, the vehicle which crossed in front of the defendant in Wallace did not stop before entering the intersection. Instead, that car, driven by a drunk driver, was speeding and blew through a red light at a high rate of speed and entered the intersection without stopping. 23 A.D.3d at 1043, 804 N.Y.S.2d at 188. Similarly, the defendants in Rogers v. Edelman and Galvin v. Zacholl did not have the time or opportunity to avoid the accident. In both cases, a vehicle from an oncoming lane suddenly turned left in front of the defendants' vehicle. Unlike Barratt, these defendants did not have time and opportunity to avoid the collision once the crossing vehicle began its turn. The holding in Galvin v. Zacholl, supra, was distinguished by this Court in Cooley v. Urban, 1 A.D.3d 900, 901,767 N.Y.S.2d 546, 547 (4th Dept 2003) which is discussed at Point LB., supra, and is relied upon as a basis to reverse the award of summary judgment herein. The Cooley panel 13 acknowledged the applicability of the Galvin principle to the facts presented in that case, but found that holding inapplicable to the factual scenario presented in Cooley. As noted at Point I.B., the Fourth Department in Cooley found that the defendant had an opportunity to avoid the collision, and was therefore not entitled to summary judgment, citing to the distance traveled by the crossing vehicle before impact. A similar set of facts prevails in this case, except that Barratt had even more time and a greater opportunity to avoid the collision in light of the much greater distance traversed by the Heitz vehicle before impact and the fact it proceeded from a full stop as it entered the intersection. There is a credible, compelling body of evidence which contradicts Barratt's assertion that the Heitz vehicle pulled out directly in front ofhim, leaving insufficient time to avoid the collision. The trial court's decision to categorically credit Barratt's assertion and outright dismiss Heitz's claim should be reversed. As recognized by this Court in Cooley, the authority relied upon by the trial court is not to be applied when there is a question of fact regarding the moving party's ability to avoid the collision. D) ADDITIONAL EVIDENCE OF BARRATT'S NEGLIGENCE. The trial court also improperly ignored the excessive speed of Barratt's tractor trailer. Viewing the evidence in the light most favorable to the non-moving party, a question of material fact also exists regarding whether the excessive speed of the Barratt tractor trailer contributed to the accident, which is further evidence of Barratt's negligence. Again relying on the precedent of Wallace v. Kuhn, supra and Galvin v. Zacholl, supra, the trial court incorrectly found that Barratt's excessive speed was not a proximate cause of the accident. 14 In both Wallace and Galvin, there was no evidence which contradicted the assertion that the plaintiff vehicle suddenly jumped out in front of the movant's vehicle, leaving the latter no time to avoid the collision. When this circumstance exists, it is reasonable to conclude that the speed of the movant's vehicle would not have made a difference. These, however, are not the facts present in this case. Unlike Wallace and Galvin, there is ample evidence in this case which contradicts the assertion that the crossing vehicle pulled out directly in front of the movant's vehicle, rendering the issue of speed immaterial. Instead, the Court must consider whether the excessive speed was a proximate cause of the accident, given the evidence that the movant had sufficient time to avoid the collision. Once again, Nevarez v. S.R.M Management Corp., 58 A.D.3d 295, 867 N.Y.S.2d 431 (1 51 Dept. 2008) is more closely aligned with the facts of this case. In Nevarez, the First Department cited to testimony that the moving party was driving "mad fast" and emphasized the point of impact (the Plaintiffs vehicle was broadsided) in support of the conclusion that summary judgment was inappropriate. 58 A.D.3d at 298, 876 N.Y.S.2d at 433-434. Here, the vehicle black box report conclusively establishes Barratt's excessive speed, showing his tractor trailer was traveling 61 mph and 60 mph five and two seconds before impact respectively. The importance of speed is exemplified by the fact that the right front bumper of the Barratt tractor trailer clipped the passenger side quarter panel of the Heitz vehicle behind the rear wheel, sending the Heitz vehicle spinning. Even a slight reduction in Barratt's speed would have made a difference in outcome. Had Barratt been traveling within the speed limit, the accident may have been avoided, in spite of his failure to timely brake or keep a proper lookout. The excessive speed lengthened the stopping time of the tractor trailer, which also contributed to the collision with the 15 Heitz vehicle. Excessive speed was, therefore, a contributing factor to the collision and further demonstrates the negligence of Barratt. POINT II. APPEAL OF MOTION TO RENEW A) STANDARD OF REVIEW Pursuant to CPLR 2221 (e), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion." It is well. established that "a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made." Robinson v. Consolidated Rail Corp., 8 A.D .3d 1080, 778 N.Y.S.2d 387 (4th Dept. 2004) (internal citations omitted). Moreover, the requirements of a motion for leave to renew are "flexible" and "even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to 'defeat substantive fairness."' Tishman Construction Corporation ofNew Yorkv. City ofNew York, 280 A.D.2d 374, 376-377, 720 N.Y.S.2d 487, 490 (1st Dept. 1996). See also, Kirby v. Suburban Elec. Engineers Contractor, Inc., 83 A.D.3d 1380, 1384, 919 N.Y.S.2d 698, 702 (4th Dept. 2001), Fahey, J. in dissent ("Motions for leave to renew are addressed to the sound discretion of the court" and are not to be decided "contrary to the ends of justice or [in a way] incompatible with the judicial flexibility that CPLR 2221 is intended to provide.") The flexibility of the procedural requirements for renewal have survived the 1999 amendment of the statute. See Larabee v. Governor of the State of New York, 37 Misc.3d 748, 950 N.Y.S.2d 892 (N.Y. Cty. 2012), citiJ1g Garner v. Latimer, 306 A.D.2d 209, 761 N.Y.S.2d 657 (1st Dept. 2003). 16 B) THE NEW FACTS OFFERED IN SUPPORT OF HELTZ'S MOTION FOR LEAVE TO RENEW WERE SUBSTANTIAL The additional evidence submitted to the court below in support of the motion seeking leave to renew the opposition to Barratt's and Erie's motion for summary judgment consisted entirely of the expert opinions of Thomas C. Onions, a Board Certified Forensic Examiner and Diplomate of the American Board ofForensic Engineering and Technology. Mr. Onions is certified by New York State as an accident reconstructionist and has previously been qualified as an expert in traffic accident reconstruction at both the state and federal levels. Mr. Onions submitted an affidavit which contained the fmdings of his independent analysis of the collision at issue. This analysis caused him to conclude, inter alia, the following: * * * * * * * The Heitz vehicle traveled a distance of approximately 105 feet after stopping at the intersection and before being impacted by the Barratt truck. (R.252) Between 6.3 and 6.6 seconds passed as the Heitz vehicle traveled across the intersection. (R.252, 255) If Barratt continually observed the Heitz vehicle from the time it was stopped until the time of the collision as he claimed, he had the same 6.3 to 6.6 seconds to respond to the movement of the Heitz vehicle. (R.253) If Barratt continually observed the Heitz vehicle from the time it was stopped until the time ofthe collision as he claimed, he had approximately 580.8 feet in which to bring his truck to a complete stop before the collision occurred. See ~22 of the Onions Affidavit. (R.254) Barratt's truck required only 353.3 to 404.5 feet to stop. (R.254) Barratt did not apply the brakes of his truck until about one second before impact. (R.256-257) The excess speed of the Barratt truck was a competent producing cause of the accident as a reduction in speed of 5 miles per hour would have placed the truck about 7.4 feet short of the collision. (R.251-252) 17 Mr. Onions' expert affidavit provided mathematical precision to the arguments already made by Heltz in opposition to Barratt's and Erie's summary judgment motion. His expert affidavit further contradicts Barratt's assertion that the Heltz vehicle suddenly pulled out directly in front of him, leaving him no time to react. Mr. Onions specifically opines that this assertion is false, citing to the 6.6 seconds it would have taken the Heltz vehicle to traverse the 105 feet between the stop of the Heltz vehicle at the intersection and the collision. (R.256-257) C) THE TRIAL COURT ERRONEOUSLY FAILED TO RECOGNIZE ITS DISCRETION TO CONSIDER HELTZ'S MOTION FOR LEAVE TO RENEW The trial court's denial of Heitz's motion seeking leave to renew was incorrectly premised upon a fmding that it lacked the discretionary authority to grant the requested relief. Although it is true, as the trial court recognized, that Heitz was obligated to show a reasonable justification for not presenting the new evidence earlier, the court erred when it determined it did not have discretion when making the "reasonable justification" determination. Second, the lower court compounded its error when it failed to consider the full justification offered in support of the renewal motion. In Robinson v. Consolidated Rail Corp., 8 A.D.3d 1080, 778 N. Y.S.2d 387 (4th Dept. 2004), this Court stated "a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made." [Internal citations omitted.] See also, Kirby v. Suburban Electrical Engineers Contractors Inc., 83 A.D.3d 1380,919 N.Y.S.2d 698 (4th Dept. 2011). Here, it is not disputed that the facts utilized by Mr. Onions to support his expert opinions were known at the time of the underlying motion. The trial court determined, 18 however, that it did not have any discretion unless and until reasonable justification was found. This was error. In Smith v. Cassidy, 93 A.D.3d 1306, 93 A.D.3d 1306 (4th Dept. 2012), this Court specifically recognized that a lower court can exercise discretion with regard to the justification question. In addition, following the amendments to the CPLR 2221 (e) in 1999, courts have continued to recognize that "even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to 'defeat substantive fairness."' Garner v. Latimer, 306 A.D.2d 209, 210, 761 N.Y.S.2d 657, 658 (1st Dept. 2003). Citing a Third Department case, Tibbits v. Verizon New York, Inc., 40 A.D.3d 1300, 836 · N. Y.S.2d 727 (3rd Dept. 2007), the trial court ruled it was bound to reject the justification asserted on behalf of Mrs. Heitz, refusing to exercise any discretion on the justification issue. This decision by the trial court is contrary to the Fourth Department's decision of Smith v. Cassidy, supra. There are two additional reasons why the trial court's reliance on Tibbits was error. First, the Tibbits case provides limited guidance on the justification issue in this case as Tibbits involved a justification for a failure to timely uncover evidence. In this case, the justification related to the decision not to submit evidence which was admittedly known at the time of the underlying motion. Second, in rejecting the renewal motion, the trial Court found that "the only explanation offered by plaintiff to justify her failure to provide the expert affidavit as part of its initial opposition papers is that plaintiff's counsel concluded that defendants had not met their burden on their summary judgment motion." (R.32) This was the same explanation found unavailing in Tibbits, however, in this case, Heitz also explained that the expert affidavit of Mr. Onions was not initially submitted because there was sufficient evidence already in the record raising a question of fact regarding Barratt's negligence. Heitz relied upon the large body of case law in the summary 19 judgment context which imparts that expert opinion evidence need not be submitted in every case in order to successfully oppose a motion for summary judgment. (R.241-242) These additional explanations asserted by Heitz were absent from the Tibbits case and were never considered by the trial court. Had the trial Court taken into consideration the entirety of Appellant's asserted justification, and, had the Court properly used its discretion to consider the justification, it is respectfully submitted that the trial Court should have found the justification to be reasonable. Therefore, this Court should find that the justification is reasonable and consider the expert affidavit of Mr. Onions which provides the mathematical precision supporting Appellants argument that her negligence claims should be reinserted. 20 IV. CONCLUSION For the reasons discussed above, Heitz respectfully requests that the Appellate Division reverse the Orders of the court below, deny Barratt's and Erie's motion for summary judgment, and reinstate Heitz's complaint. Dated: Buffalo, New York July 18, 2013. 21 Respectfully submitted, Attorneys for Appellant MARY T. HELTZ 2100 Main Place Tower 350 Main St. Buffruo,NY 14202 (716) 855-1050