Mary T. Heltz, Appellant,v.Bruce S. Barratt et al., Respondents.BriefN.Y.Dec 10, 2014 August 22, 2014 New York State Court of Appeals 20 Eagle Street Albany, New York 12207 RE: Mary T. Heltz v. Barratt & Erie Logistics LLC v. George M. Heltz APL-2014-00160 TO THE JUSTICES OF THE COURT OF APPEALS: This action for personal injuries arose out of an accident between the vehicle operated by third-party defendant-respondent George M. Heltz (hereafter “George Heltz”), in which the plaintiff-appellant Mary T. Heltz (hereafter “Mary Heltz”) was a front seat passenger, and our client’s tractor-trailer operated by Bruce S. Barratt (hereafter “Barratt”) and owned by Erie Logistics, LLC, the defendants- respondents (hereafter referred collectively as “the respondents”). The Fourth Department Appellate Division upheld the order granting summary judgment dismissing the complaint with one dissenting justice, and this appeal ensued with leave from the Court of Appeals. OFFICES IN BUFFALO ■ SYRACUSE ■ UTICA ■ KINGSTON New York State Court of Appeals August 22, 2014 Page 2 Statement of Facts Mary Heltz’s factual recitations regarding the location of the accident, the traffic control devices present, and George Heltz’s failure to yield the right of way to Barratt are accurate. However, Mary Heltz misrepresents Barratt’s actions in response to George Heltz’s failure to yield the right of way by alleging that Barratt did not apply his brakes until the rear of the Heltz vehicle had entered the westbound lane. There is no reading of Barratt’s testimony that supports this interpretation. Barratt clearly testified that he began applying his brakes as soon as George Heltz accelerated from the stop sign: Q: What did you do when the SUV first left that stop sign? A: I applied the brakes. Q: Where was the front end of the SUV when you first applied the brakes? A: It was into the eastbound lane of Route 243. Q: Did you do anything in between the time that he left the stop sign and the time that front end of the SUV got into the eastbound lane? A: I applied the brakes. Q: You said that you applied the brakes when the front of the SUV was into the eastbound lane of State Road 243, is that right? New York State Court of Appeals August 22, 2014 Page 3 A: Yes. Q: There’s a shoulder area before you get to the actual road on State Route 243? A: Correct. Q: At the time that the front of the SUV was in that shoulder area, had you taken any action with regard to your vehicle? A: All I could do was apply the brakes in anticipation of him possible spotting me and stopping or keeping going. I remember turning to the left when I realized that a collision was unavoidable, and it appeared that he was going to keep going and not spot me at all. (R 101, 102). According to the tractor trailer’s “black box,” Barratt applied his brakes between one and two seconds before the collision (R 201). Despite Barratt immediately braking and turning to the left “microseconds” (R 104) after applying his brakes, he was unable to avoid hitting the rear passenger side quarter panel of the Heltz vehicle. (R 105). Mary Heltz also misconstrues Barratt’s speed as he approached the intersection. Barratt testified that he was traveling 57 miles per hour (R 99), two miles above the speed limit, at the time of the accident (R 96). The tractor trailer’s black box provides more detail about the accident. It recorded that Barratt last traveled 64 miles per hour over one minute before the collision. From 30 seconds New York State Court of Appeals August 22, 2014 Page 4 before the collision to the point at which he applied his brakes, Barratt was traveling within one mile per hour of 60 miles per hour (R 201). Mary Heltz and George Heltz never saw Barratt before the accident (R 123, 134, 135). Notably absent from the record regarding the opposition to summary judgment was any expert opinion stating that Barratt’s speed, although slightly above the speed limit, was a proximate cause of the accident, or that Barratt could have otherwise avoided the accident. Accordingly, the decision below should be affirmed because Barratt met his prima facie entitlement to summary judgment and Mary Heltz failed to present any comparative negligence on the part of Barratt that was a proximate cause of the accident. New York State Court of Appeals August 22, 2014 Page 5 ARGUMENT POINT I SUMMARY JUDGMENT WAS PROPERLY GRANTED TO THE RESPONDENTS BECAUSE GEORGE HELTZ’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT. The majority in the Appellate Division rightly held that the respondents had proved their prima facie entitlement to summary judgment, because the undisputed facts establish that Barratt’s speed was not a proximate cause of the accident: Here, we conclude with respect to the order in appeal No. 1 that defendants met their burden of establishing that defendant was operating his vehicle “‘in a lawful and prudent manner and that there was nothing [he] could have done to avoid the collision’” Defendant testified that he saw plaintiff’s vehicle at the stop sign, braked as soon as he entered the intersection, and turned to the left “microseconds” after he braked. Despite defendant’s efforts to avoid the accident, his truck struck the rear of plaintiff’s vehicle on the passenger side. In opposition to the motion, plaintiff failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to plaintiff’s contention, “the fact that [defendant] may have been driving at a speed in excess of five miles per hour over the posted speed limit … is inconsequential inasmuch as there is no indication that [defendant] could have avoided the accident even if [he] had been traveling at or below the posted speed limit” (Daniels, 111 AD3d at 1410). New York State Court of Appeals August 22, 2014 Page 6 It is well-settled that a driver with the right of way is entitled to anticipate that other drivers on the road will obey traffic laws that would require him or her to yield. Rodgers v. Edelman, 79 A.D.3d 1803 (4th Dept. 2010); Stiles v. County of Dutchess, 278 A.D.2d 304, 305 (2d Dept. 2000); Namisnak v. Martin, 244 A.D.2d 258, 260 (1st Dept. 1997). That driver is entitled to summary judgment when he or she had only seconds to react to a vehicle that failed to yield the right of way and there was nothing that driver could reasonably do to avoid the collision. Bulls v. Massara, 71 A.D.3d 1408, 1409 (4th Dept. 2010); Yelder v. Walters, 64 A.D.3d 762, 764 (2d Dept. 2009), Stevens v. Zukowski, 55 A.D.3d 1400, 1401 (4th Dept. 2008); Espinoza v. Loor, 299 A.D.2d 167 (1st Dept. 2002); Lucksinger v. M.T. Unloading Services, 280 A.D.2d 741, 742 (3d Dept. 2001). A driver with the right of way is entitled to summary judgment where he is traveling slightly above the speed limit, if the speed is not a proximate cause of the accident: Supreme Court erred in denying the motion of Swain for summary judgment dismissing the complaint against him. In support of the motion, Swain established that he entered the intersection with a green light, that he was not speeding, that he had no opportunity to avoid the accident, and that Kuhn drove through the red light without stopping. Swain thus established as a matter of law that the sole proximate cause of the accident was the negligence of Kuhn (see Persaud v. Darbeau, 13 AD3d 347 ); New York State Court of Appeals August 22, 2014 Page 7 Iqbal v. Petrov, 9 AD3d 416 ; Lestingi v. Holland, 297 AD2d 627, 628 ), and neither plaintiff nor Kuhn raised a triable issue of fact whether Swain “was at fault in the happening of the accident or whether he could have done something to avoid the collision” (Lestingi, 297 AD2d at 629). In the absence of any condition that would have required him to reduce his speed, Swain was entitled to approach the intersection without slowing and was further entitled to anticipate that Kuhn would obey the traffic laws that required him to yield (see Barile v. Carroll, 280 AD2d 988 ; see generally Doxtader v. Janczuk, 294 AD2d 859 , lv denied 99 NY2d 505 ). Kuhn’s contention that Swain could be found negligent because he failed to see Kuhn’s vehicle until immediately before the collision “is based on speculation and is insufficient to defeat a motion for summary judgment” (Barile, 280 AD2d at 989; see Zadins v. Pommerville, 300 AD2d 1111, 1112 ). Kuhn’s contention that Swain may have been operating his vehicle slightly above the speed limit is also unavailing because, even assuming, arguendo, that Swain was exceeding the speed limit by five miles per hour, we conclude there is no evidence in the record before us that the speed at which Swain was traveling was a proximate cause of the accident (see Lucksinger v. M.T. Unloading Servs., 280 AD2d 741-742 ; Matt v. Tricil [N.Y.], Inc., 260 AD2d 811, 812 ). Wallace v. Kuhn, 23 A.D.3d 1042, 1044 (4th Dept. 2005)(emphasis added). See also Green v. Mower, 302 A.D.2d 1005, 1006 (4th Dept. 2003)(holding that defendant’s Vehicle and Traffic Law violation was not a proximate cause of the accident and is entitled to summary judgment because of the other driver’s failure to yield the right of way). New York State Court of Appeals August 22, 2014 Page 8 Vehicle and Traffic Law § 1142(a) provides the rule for proceeding from a stop sign: [a vehicle] after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection. If a party failed to yield to traffic on the roadway in violation of the Vehicle and Traffic Law, and the violation was a proximate cause of the accident, the moving party is entitled to summary judgment on the issue of negligence. Van Doren v. Dressler, 45 A.D.3d 1366, 1367 (4th Dept. 2007); Arms v. Halsey, 43 A.D.3d 1419, 1419-20 (4th Dept. 2007); Hamby v. Benventre, 36 A.D.2d 648, 649 (3d Dept. 1971). Here, George Heltz violated Vehicle and Traffic Law § 1142 by failing to yield the right of way to Barratt and his violation was the sole proximate cause of the accident. Barratt’s uncontroverted testimony establishes that he observed the Heltz vehicle continuously and that it entered the intersection from a stop sign only a couple hundred feet in front of him. Barratt’s uncontroverted testimony further establishes that he applied his brakes when George Heltz accelerated from the stop sign, and turned his wheel to the left when it entered his path “microseconds” after New York State Court of Appeals August 22, 2014 Page 9 applying the brakes. There is no evidence that Barratt’s speed, less than six miles per hour above the speed limit, is a proximate cause of the accident. Accordingly, Barratt acted prudently and reasonably while approaching the intersection and in attempting to avoid the collision and, as such, has met his prima facie entitlement to summary judgment. Having established entitlement to judgment as a matter of law, Barrett shifted the burden to the other parties to raise a triable issue of material fact: One opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate an acceptable excuse for his failure to meet the requirement; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). See also Zimmerman v. Yuskevich, 306 A.D.2d 403 (2d Dept. 2003); Masone v. Westchester County, 229 A.D.2d 657 (3d Dept. 1996). Mary Heltz argues that black box data contradicts Barratt’s testimony regarding the reasonableness of his actions and thereby creates a question of fact. However, the black box data confirms Barratt’s testimony as to the actions he took to avoid the accident by showing that he applied his brakes between one and two seconds before the collision. Mary Heltz can only speculate that this data shows New York State Court of Appeals August 22, 2014 Page 10 that he failed to apply the brakes as soon as he observed George Heltz accelerate from the stop sign, and has not provided any accident reconstruction evidence or other expert opinion opposing summary judgment to support this allegation. Mary Heltz further argues that George Heltz’s “typical or normal” acceleration from the stop sign creates a question of fact regarding the time Barratt had to avoid the collision. Again, this argument is wholly speculative. Mary Heltz has provided no evidence opposing summary judgment as to the distance the Heltz vehicle traveled from the stop sign before being struck, or the time required for the Heltz vehicle to travel this distance by accelerating “normally” from a stop sign. Moreover, any arguments as to Barratt’s ability to avoid the accident based on “normal” acceleration from a stop sign are unsubstantiated and require expert testimony, which the appellant failed to provide. Cooley v. Urban, 1 A.D.3d 900 (4th Dept. 2003), cited in Justice Whalen’s dissenting opinion, is not on point. Cooley held that the defendant could be found comparatively negligent based on his own testimony that he failed to slow down or make some evasive maneuver to avoid the collision. Here, the facts are just the opposite. Barrett testified that he did slow down by braking. The data collected from the black box confirms this testimony. Also, he steered to the left in an New York State Court of Appeals August 22, 2014 Page 11 evasive maneuver. There is no genuine dispute as to his efforts to avoid the collision, which was inevitable. Likewise, Nevarez v. S.R.M. Management Corp., 58 A.D.3d 295 (1st Dept. 2008), also cited by Justice Whalen, is readily distinguishable. Nevarez found there was conflicting testimony from a passenger in the plaintiff’s vehicle as to whether the defendant, who did not have a stop sign, was traveling “mad fast” as he approached the intersection. Here, there is no such conflicting testimony. Both the appellant and the third-party defendant never saw Barratt’s tractor-trailer, and testimony from Barratt and black box evidence indicate that he was traveling between 57 and 60 miles per hour in a 55 mile per hour zone when he applied his brakes. Mary Heltz has provided no evidence, as required by Kuhn and its progeny, showing that Barratt’s speed contributed to the accident. Despite failing to present evidence showing that Barratt contributed to the accident, Justice Whalen held there was a question of fact as to his negligence. Justice Whalen merely speculates that Barratt “might have” avoided the accident: Had defendant been traveling at the speed limit, braked and/or veered sooner, the collision might have been completely avoided. Considering the SUV’s location at the time of impact and standard acceleration, and defendant’s understanding that the SUV was oblivious to his approach, if defendant had sounded his horn upon noticing the SUV accelerate the accident might have New York State Court of Appeals August 22, 2014 Page 12 been avoided. Defendant testified that he could only apply his brakes in anticipation of the SUV possible spotting him, but a trier of fact might disagree. Questions of fact exist as to whether defendant should have been traveling slower, braked and veered sooner, and/or sounded his horn when he first observed the SUV enter the “intersection without appearing to slow down or to look in [defendant’s] direction” (King, 273 AD2d at 726; see Deshaies v Prudential Rochester Realty, 302 AD2d 999, 1000). As discussed above, the deposition testimony and black box record establishes that Barrett is entitled to judgment as a matter of law. There is no evidence contradicting Barratt’s testimony that he was only a couple hundred feet from the intersection when George Heltz drove from the stop sign, that he braked as soon as George Heltz accelerated, and that he veered left microseconds after braking. Accordingly, the Appellate Division correctly held that the plaintiff failed to raise a question of fact as to Barratt’s negligence. This court therefore is urged to affirm the decision appealed from, and grant all other appropriate relief. New York State Court of Appeals August 22, 2014 Page 13 CONCLUSION For the foregoing reasons, and in accord with the authorities cited and discussed herein, it is respectfully requested that this court issue an order affirming the order appealed from, and granting all other appropriate relief. Buffalo, New York August 22, 2014 __________________________ Andrew J. Kowalewski cc: Scott R. Hapeman, Esq. Daniel R. Archilla, Esq.