Mary T. Heltz, Appellant,v.Bruce S. Barratt et al., Respondents.BriefN.Y.December 10, 2014PERSONIUS MELBERLLP . ATTORNEYS AT LAW 2100 MAIN PLACE TOWER . Storr R. HAPEMAN• AsSOCIATE. . BUFFALO,NEWYORK 14202.3750 TELEPHONE (716)855"1050 .· FAX (716)855-1052 www.PERSONIUSMELBER.COM srh@personiusmelber.com .·· AU$USt 8, 2014 · New Y 6rk State Cqurt of Appeals Colirt of Appeals Hall · · · 20 Eagle Street Albany, NY 12207 · Re.:·.· Heitz v. Bruce S •. Barratt, et al . . Dkt. No .. CA.13-01101 · Our File No. 70l7.ot · Your Honors: · • 1 ' . - -- - - ~ ' - - . . ~ . , . ' ' ' ' ' - ' ' . ' ' - Mary T. H:eltz is appe~ling to this Court from an Order of the : Appellate .· · . Division, FourthJudicial,Department enteredM~ch 28, ZOl4, which affiooed an ' . . ~ . . . Order of the Sup~eme Court, . County of Erie ~anting the summary judgment motion of Defendants Brlic~ · S. Barratt and Erie Logistics, LLC and dismissing , ' - - . ' ,. , Mary Heltz's negligence action. The t~ial Court and a majority ofthe Appellate .· D.ivision erroneously credited· Bruce S.·Barratt's con~lusory·testimony, finding_· . . there was nothing he Gould 4ave done to avoid the collision~ 'In doingso, the· fower - -- - •' ' . . ' . '. . ' , , . , . . courts failed to take into. account evidence• in the record that Barratt's negligence Page 1of20 - . - - ... co~tributed toJhe crash .. At the Appellate Division, Ju~tice Whalen disagreed with •. · the niajorityand voted to reverse the decision of the trial court, articulating in. ' ' ~ . ' . . ' ~ ' ' . ~ - - detail th~ fa~ts which, when properly viewed in ·a Hght most favorable to Mary · - --.r • ' • 1 • Heltz, giverise to questions of material fact regarding the negligence of Bruce S. Barratt. Justice Whalen conchided th~re are questions of fact as to whether Barratt · - • ' , • I '• • • ) . used the requisite: reasohabl~ care when proceeding into the intersection on the day . . , - . . . , ( , Mar)r Heltz was severely injure4. The issue befote·this. Court is. whether, when summarily• dismissing Mary. . : - . . . '- ' ·. ' \ ' '-, ·- .- ' Heltz's action for negligence, the trial Court and the Appellate l)ivision majority erred by f~iling to view the evidentiary pro'of in the 1~ecord. in a light most favorable. . " ' - ' - ( . . , . ' ' ' - ' - . ' ·. ' - , ,. ' ~ ' ' ' ~- , '·. ' -~ / _, ' ·: . . / , · '., to Mary Heltz, the- no11:-J?lOVing party, . and thereby. overlooked the ~v1dence demonstrating the .negligence ()f I~ruce S. B~att. It is ~espectfully submitted that • , ) <. - the 'lower courts· errecl. The Order of the Appellate 1 Division 'sh~uld be reversed ' ·and the first amended complaint of Mrs; .Heltz reinstated. A reversal will correct • I •• ; ; • • < I •• • • - ' .• ' , ~- - • · the injustice to Mary Heltz, allow her 'claims or' negligence to. be prop~rly . . ' '· ·- , considered by ajury and align this case.with controlliQg precedent·ofthis Court . . , .. ~ Page2 of 20 . -. ' . . -STATEMENT .OF FACTS On.Oc~ober 30, 2009,·PfaintiffM.ary T. Heltz ["Heltz"] was injuied,during a collision \\'hich o~curred while·· a passenger in a Ford. Escape driven· by her ' ' ' husband, third-party defendant George· Heltz. (R; 7 6-79, 168;. l 69)1 Heltz suffered· I " , ' ' ' ' - " ' •,serious, career:ending injuries, in,c~uding damage to, her vertebrae, whichrequireda surgical fusion 'of' her cervical vertebrae at multipi'e. levds, . and. an impairment of ' ~ '. . ~, ' ' her shbulder which required a separate arthroscopic surgery. (R.159) Mary Beltz , .:' . ,: ' - i - . ' · .. . was· rendered permanently disabled from her, employment'as a registered nurse as a '' ' result of these 'injuries. · · The Heltz \Tehicle was traveling north .on East Centerville Road ht the Town , I - ' ' ' ·• ~fRushford, NY. {R.76-,79, 170~171) Just prior to the collisi0h; Defendant Bruce ' - ' ' . . S. Barratt [''Barratt"] was driving a 2.007 International tractor trailer in the course ' - . . .. of his. employment with Defe!ldant: Erie Logistics;. LLC. ["Erie"] west on.· State .Route 243, toward the intersection with EasfCenterville Road .. (R; 7_6-79, 178~180) . East Centerville Road is regulated by a stop sign afits intersection witlf State · · Route 2~3. (R.17 l) The speed limit is 30 mph. (R~ 173) . There is ~o stop .sign .nor traffic signal for traffic traveling on State Route. 24~ at this mtersection. (R.171) The speed limit on Route 243 is 55 mph. (R.173) 1 "R._· " references are to the Appellate Division Record on Appeal. Page 3of 20 · . Barratt first observed the lleltz ·v~hicle when: it· was stopped at the stop sign .· . . atEastCenten!ille Road, and: before ii entered the intersection~ (R.183) 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 Heltz vehicle continuously ' I ' , • f · . until the tirne of the collision. (R.186) Even thoug~ his tractor. trailer was still, . · ac~ording to Barratt, "a couple hun9fed feet" fromthe . .intersection, whe11 the Heitz . · vehicle entered the intersection, (R.185) hedid not sound th~ horn of the tractor, ' ' I < '·'' • nol" take .any evasive. action to avoid a collision. (R.186) It ·was not .until the rear· . of the Heltz vehitle had crossed intothe westbound lane of State- Route 2.43 that · Barratt finally took some action to avoid a collision by applying his brakes and thereafter turning. the tra9tor t~ailer tothe left .. (R.187,..188, 202) · . > Barratt. testified ~t State Route 243.has two !Ones, ~nein each .direction. There· is.· a paved. ·shoulder ·~n each side .·of the. road, ·ancl each shoulder' is approxiinately : eight feet wide. . (R~ 182) · Driving ·in the Westbound lane . and · appro~diing' the intersection with East Centerville Road, State Route 243 make~ a· . gradual' tum with.a slight upgrade. (R.181) :S.arratt admittedJhat he was speeding •• -, ' ' ' / ' J ' ' ~· - - - ; . - ~ , - ', . ,· .' - -· .' ',_ . ' ) ; ' -- .-. ', - ''_._. _,' ' - . ". in the moments leadirigup to the collision. He estimated his speed at 57 mph. ' ' .. (R.184) The tractor trailer's. data recorder, or black box, which was·pa,rt of the. ·truck's onboard computer .system, reflects that he was actually traveling as fast as . ·. Page 4 of 20 . · 64 mph in his approach to·the intersection; . (R.202) Five s"econds before impact,· . - " - .. . . the tnick'.: SJleed was 61 mph; artd the throttle was. erigaged ilt forty"eight percent . ( 48%). At tWo seconds before. impact, Barratt' s speed was still 60 miles per hour .. - " . ' · Still, the · throttle . was engaged .. at . forty-seven . percent ( 4 7% ). (R202) . . . . Despite Barratt's testimony thath~ observed theHeltz vehicle cross both the eight . foot paved shoulder and .the eastbound lane of State Route 243, and.then proceed · . across the westbound lane of State Route 243, the black box report dis9loses th.at .. · he did. not step off the throttle ~or even begin to b~ake until just one second before • J • • . the accident. (R.186, 188, 202) ·. At ~is deposition, George Heltz t¢stified that~. while traveling north on East · Centerville Road, he· brought his .vehicle to a complete stpp at the State Route 243 ·· . inter~ection. (R.193) He .fooked both left' and right ori State Route 243, but did ' • ' • l ' _1 not ,ob.serve .any :vehicles· approaching· the intersection. (R.194) Mr. Heltz then moved his vehicle forward in ~n 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,.Heltz did not see any trafficon ~tate Route 243 duringeither ' - ' \ . stop at the intersection~ .· (R.195} He then proceeded across the ·intersection. · . ' , ' (R.f96) . Barratt, who was able to see the Helt~ vehfole, described George Heltz's . Page 5 of 20 acceleration· from the stop sign through the fntersection as standard,· and. neither· · fast rior aggressive .. (R. 188) The Heltz vehicle· tr~versed across an eight fdot paved shoulder and fully ~ " ) aqross the eastbound lane of State Route 243. (R.182, 186-187)· .After fully .· ' . ·'-- . . ' ' _- ' ente~ing the westbound lane of State Route 243; the vehicle wa~ struck by. the fractoi'.trailer·beiilg: driven by Barratt (R.76-79, 187) Therightfr~nt fender1 of ' .. the truck.~truck the' rightrearquarter panel of.the Helt~ vehicl~, behind.the .rear wheel: ·(R.189_, 200} ·The Heltz vehiele immediately spun app~pximately 450~ r ., , , , before coming to a stop on the n~ith side.of the intersection. (R.198) ) -· ,_ ~ , ' . ' ' - . Mary Heltz initiated this action sounding ·in negligence to recover damages. for the. de~astatingpersonal injuries she .suffered in the. af1ermath of the collision .. · • • > • • ' - ' llY. ·Decision. ·and :or.de{ :bated October 9, 2012, the .su. preme, Court .g~anted · . . . . summary judgment to ·.the defend~ts, dismissing .. Plaintiff~ .. complaint in. its. ' - .. • ' ' - • ~ ' • ' - J entirety .. {R. 11.:.21) Heltz · appealed to the Appellate Division,. F oUrth JudiciaL . ' . \ ' . ~ Pepartment' By .Order eritered'MarchZ8, 2014,'the Appellate Division affirmed ·the IAS court's order .. Four. df th~ justices joined the. majority opinion finding that · Heltz • failed to raise an issue of fact. in opposhion to. the.· defendants' motion.· ·· •' ' -' .- . ' - - , ' . Justice Whalen voted· to· reverse the lower court and. issued a dissenting opinion . which carefully detailed the. facttial· e~idence giving rise to a question' of fact .. L ' -, ' ' ' ' . Page 6 of.·20 requiring denial ·of siunmaryjudgment (See the March 28, 2014Memorandum - and Order of the Fourth· Department whlch ·is· attached hereto as Exhibit A) •. This . . . Cou.rt granted leave to appeal the decision of the App¢11ate D~vlsion. . . ARGUMENT . - ' - POINT I - · The fower·Courts·erredin faili~g to viewthe evidence,in alightmost · ·. favorable toPlaintiffHeltz and in failing' to recognize thatthere are ·questions ot:rrtateriaffacttegarding the negligence of Bruce S. · · Barratt.-·. · · · · · ·· · · · · · . A) STANDARD OEREVIEW '· "On a motion: fot. summary judgment, facts must be viewed in. the light m9~t . · fa~orable t.o the non-moving party. 'summary judgment is a drastiC remedy, to be granted only where the . moving party has tendered. sufficient evidence to ·. demonstrate the absence of any material issues of fa:ct and then only if, upon the • • l ' moving party's meeting of this 'burden, the non~moving party fails to establish the .- - ' - . ' , - ~ ' . existence of material issues of fact ·which require atrial ofthe: action." Vega v. , , ~ - . ' - , / ) ~- ' - ' . ' ; ' .' ' '' . ' ( Restani Constr. Corp'., 18 N.Y.3d 499, 503-; 94~ N.Y.S.2d 13~15 (2012){internal ... ··quotations and citations omitted)~ -· - ~ .. Summary judgment is. particularly rare in negligence cases beca:use the question of· whether. the · defendant acted reasonably 'under the circumstances can ( ,_' - ,rarely be decided. as a.matter of law .. See Andre v~ Pomeroy~35 N.Y~2d 361, 262 · N.Y.S.2d 131 (1974). ·It is to ·be utilized only ''when there is nodoubt as to the - " - ' ·- ., ' , absence of triable issues" since it ''deprives the litigant of his day in court.'' Andre - . . . . V; J:omeroy, 35 N.Y.2cL361, 364, .262 N.Y:S.2d 131, 133 (1974) .. Stimmary ' . - l ' · judgment is rtot to be granted if there is "any doubt ai;; to the existence of a triable · · issue or when the issue is· arguable~ Ifthe 'issue i's fairly debatable a motion for - , -· , . _I - ,, , summary.judgme_nt m~st be denied. · In other wor~s,' if it is r~asonable to disagree ' ··about the material. facts or abo.uf what may be inferred from undi~puted. facts, . ' - ,. . . -· , - sumn1aryjudgment may not be granted.'~. Ferluckaj v. Gold"Jnan Sachs & Co.; 12 N.y.3d 316, 321; 880 N.Y:S:2d S79, 881 (2009) (Pigott, J. in dissent) (internal . I - I 'I • quot~fion_s and citations 9mitted). ' i' '. ' ' • ' ' ·, Uiilizing··~hese.well-known_ standards,, the Court·mtist.presume thetruth•of . the facts. as advanced by Heltz for the purpose of this appeal and view what may be · \ ' , ' . ~ ' - ' ' ' ' - " . ' - ' ' ' . . . inferred from the facts concemingBarratt's negligence in alight most favorable to ~ ' ' ., • < Heltz. That evidenc~ ~hows defend~t Barratt had stiffieienttime and opportunity · . to avoid the accidep.t, yet failed to-do so. Page 8 of20. . . B) . THERE IS A QUESTION OF MATERIAL FACT REGARDING THE NEGLIGENCE OF BARRATT In order .to obtain sumniary judgment, Barratt arid Erie were required to. ) - - ' - ' ' . affirmatively establish as a matter of law that they were not guilty ·of any · negligence with respect to· the happening of the ac~ident. Zuckerman v. City ~f / > ; ' • ' New York, 49 N.Y.2d 557, 427 ·N.Y.S.2d 595 (1980). Summary judgment on the. issue of negligence is only aRpr~priate when the "facts clearly point to the · neglig~nce 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. l998)(emph~s1s added). Here, both the trial Court and the Appellate Division · erroneou~lyc found that the collision. was solely the fault of George Heltz ·and ' - ' ' ' .. - ' ' '. - ' completely· ovedooked the failure of Barratt to exercise due care as his tractor ) _,· ' . t~ailer approached and entered the intersection by traveling slower, bra.I I , ' ' ' ~ to.avoid the collision after observing the Heltz v~hicle,._an~ that he otherwise failed to properly observe the Heltz vehicle; Each- of these derelictions is a sufficient ' ' , , ' ' ., contributing cause of the accident and requires a reversal ofthe trial c?urt's Order. granting summaryj'udgment. A fair~reading of the .evidence in the Record reveals that Barratt ob~erved the Heltz vehicle stop at the intersection before proceeding from. a stop in a typical or normal manner. Despite these observations, Barratt took no action. He then Page 10 of' 20 continued to observe the Heltz vehicle traverse the eight foot wide shoulder of. ·state. Route 243, as well as entire oncoming eastbound larie of State Route 243. ..... " , . . . . . Barratt still· did nothing. Only after the .Heltz vehicle . crossed the westbotind lane . did Barratt. take any action to slow the spe.ed. of his tractor trailer, only a single second befor~ impact. The biack box data shows Barratt was. still engagi~g the throttle until this final second before impact. By then, the rear end of Heltz~ vehicle ' .· ' . ' ' - ' ,.. _ had almost fully traversed the westbound lane of State Route243. The evidence of the gradual acceleration of the Heltz vehicle from a full stop, coupled with the considerable distance it traveled before impact, demonstrate that_ Barratt ·had sufficient time and opportunity to avoiq the collision with the . - . . , . Heltz vehicle, but failed to do so .. That is negligence. . The failure of Barratt to timely ·act, is espedally pertinent given.the.·location of contact between·the tractor .. trailer and the Heltz Vehicle. · Because th~right front fender of.Mr. Barratt's tractor trailer· struck the right rear quarter panel of the_Heltz vehicle behind the rear wheel, . ' - .. · ~ the collis,ion was a near miss and only a small dJfference in Mr. Barratf s actions would have avoided the crash. Had B~atttaken action one or two seconds earlier, . • . - ' f '- - '.) 'the collision would probably havebeen avoided. An alternative view of the same facts leads to the conclusion that B_arratt was negligent in failiJ:ig to properly observe the Heltz vehicle, rather than failing to Page 11 of 20 · properly take actio~ in response to what he observed. In either instance, there is a question of m,aterial fact which requ~ires~, resolution by ajur}r. ~ ' Jn this .alternative ' ' view, the distance the Heltz vehicle traversed after stopping at the ,Stop ::;ign, co~pled with the . irrefutable evidence that Barratt did not react to the 1Ieltz vehicle - . until one second before impact,·. demonstrates . Barratt simply failed to properly , 1 - ' - .. observe the Heltz 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 dfrectly refutes histestimony regardi!lg his ·. observations. of the Heltz vehicle:· , In his· 'detailed dissenting opinion, Justice Whalen applied the .well kriowri -_ standards ofstimmary judgment as articulated above an_d gave proper consideration ' ; I ' ' to the evidentiary ·facts advanced by Heltz in opposition ·to defendants' motion, viewing those facts in a light most favorable to the non-moving party, Mary Heltz. ,· \ - ( Justice Whalen discussed in detail the evidence of the gradual acceleration ofthe > ' -' ' \ '. • ' - • / • • . Heltz vehicle from a full stop, th~ significant. distanc~ the ·Heltz travers·ed ·before ' '~ ' ' ' - - ,, I 'being struck, the black box data which confirms both that Barratt did not apply his . ' ' , ' ' - - ' ., _. ' brakes untilo~e second before impac~ and the excessive speed of the tractor traller, a~ well as the location ~of the impact on the vehicles. . As Justice Whalen noted; · · these facts support the conclusion that· ''the black. box report . contradicts_ Page 12of 20 defendant's testimop.y that he first applled hiS brakes when he was--200 feet away.'; See Exhibit A at 3. Justice -·Wh~len recognized that "a cliffer~nce in a matter of ' -· .~ ·. ,sec,onds, or perhaps less, could have prevented this accident. The SUV hadal!11ost niade it across the intersection and was in the westbound lane whe!i the collision •• - L • ' . ' , __ ' - -:' ·, . - .:· , , - ' ' - occtirted. ·. Defendant saw the SUV acce~erate from th(! stop · sign ~espite . his - ~ -- . . . appt~ach, yet did 11ot. fake . any evasive action urttil one second ·before· impact" - - - - • - ' ~ • - - , c. , - .. E~hibit A at 4. He .. continued: "Had defend~nt been traveling at the speed limit, ' C I > ; ·' ' . braked and/or veered sooner, the collision might ha~e-bee~ completely av~ided. ·. - ' • ' - ' J_ " - ' • , - ) Corisi_dering the SUV's location_ at the time ofhnpact _ an9 standard. acceleration, .·. · · and ~efendant's llllderstaµdingthaithe StJV was oblivious to his al'proach, if i . defe~dant had sounded. his. horn upon noticing the SUV. a~celerate the accident . '- '' ; . / - ' - . . might.have been avoided:'~ Id.·.· ' ' ' ·- ' - -. ·Ultimately,-·Justiee'- Whalen ?oncluded .·that "[q]uestions of fact exist a~ to whether defendant should have ~een traveling slower, braked and 'veered ~ooner, .· and/or· sounded his horn when he first observed the . SUV enter the 'intersection -- '• . ,' - ,· . , ' - . ' . . - .· / ·· ·without appearing to . slow·_. down or to IQ·ok in. [defendants' s l · direetion.'" · id , ' '. ' - - - ·, - . ', '- . . (int_ernal citati~n omitted) .. · Justi~e Whalen further recognized the applicability of the authority relied upon by Heliz in opposition io -.defemlants '· motion, citing in his , . , . dissent to b~th Cooley v. Urban, 1 A.D:3d 900, 767 N;Y.S.2d 546 ·c4th Dept 2003) ' ' I ("' ,'- - ' . " ' ,' ' ' ,_ Page 13 of 20 ' - ' ', ·. . . ' , - ' J • - ·and Nevarez' v. S.&M Managem_ent_Corp., 58 A.D.3d. 295~ 297, 867 N.Y.S.2d 431, 433 (I5t Dept~ 2008)3 . . . In Cooley' v. Urban, supra, the Fmirth .Department upheld. the. denial ·of·. / ' ' ~ ' ' - ' summary judgment in a_ shniiar' circumstance, flnding that the six to seven foot distance travel~d by the crossing vehicle occupied. by the Plaintiff gave .. the . . . d,efendant ample·. opportunity: to avoid the collision. In.· Nevarez · v. S.R;}.t/. ·Management _Corp:, ·supra,· the denial ·of sunimary. judgment was affirmed based \ < , - - ~ • - - - upon bothth~· distance traveled by die crossillg vehide after its obseryafion and the r . point ()f)mpact on the cro~sing· vehicle, which .was br()adsided. , In fa.ct, the -Nevarez case is the most factually similar. ofalLcases cited bythe_parties. ·In both ... Nevarez and the caseat bar, theplaintiffveliicle 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 vehfole in each case drove through the int~rsection, th~y were struck f - ( • - , " ' ' ' by a vehicl_e which was_ not controlled by a traffic control device. In each case, the· , i ' , .defendant moved for summary judgment arguing the. plaintiff vehicle· failed to· . yield the right.;;of-way. The Nevarez Courtdetennineci that there reftlained.material . ~- 2 JustiCe Whalen also.relied ~ponDorrv. Farnham, 57A.D.3d 1404, 871.N.Y.S2d.554{41hDept.. · ·. 2008); King v. Washburn, 273A.D.2d 725, 710 N;Y.S.2d 185 (3rd Dept. 200)and Deshaies v. Prudential· Rochester Realty, 302 A.D.2d 999, 755 N:Y;S.2d, 155 (4th Dept. 2003) all ofwhichpresentfactually analogou~ ' - - - ' - - . - - ' Page 14 of 20 questioll.s of fact regarding ·the failure of the moving· party to exercise reasonable ·prudence when entering the intersection. ' . ', ' ( . ·. The Nevarez Court .al.so found there was a questi~n of fact which required . .. ~ de~fal of sl.lmmary judgment because there was a dispute over which. vehicle, in \ ,_ ' • r • ' < ~ ' '. e . . ' I -. • ·fact, had the right-of""way at the intersection. . Neva~ez, 58 A.D3d at .297, 867. N;Y.S.2d at433: Although.'the FirstDepaitment sp~l<:e in terws ~f''whohad the right-of-way," this portiqn of the Nevarez decision is nothing more than an· application of the Cooley principal, i.e. did the driver seeking summary judgment ' • - • ' r ~ • • • C '• ' - have the· time,. and opportunity to _a\ioid the collision. In Nevarez, the plaintiff - . ' , vehicl~ ·entered the· intersecti~n first, leading the Fir~t Dep~nment to conclude that · this. fact. alone suggested ample time. to avoid. the collision. The sam~ facts are - ' . - - ' ' ~ · presented here, where i.t is undisputed that the Heitz vehicle entered the . intersection first. (R,.185) 111 both cases; th,is evidence could. be relied upon by a jury to concl~de that the . driver seeking summary judgment. had ample time to . avoiq th~ col1ision; yet failed to do so. The facts cited by Heitz to dep:ionstrate the. negligen¢e of Barratt, when vi.ewed in a light most favorable to .Heitz and giving Helti the benefit of all reasonable inferences which can be drawn from the evidence, demonstratethat · Barratt did not act reasonably. There are questions of material fact which must be ~ Page 15 of 20 . considered 'by a JUry. The summary dismissal .of her claims of.negligence constitutes a ~ubstantiaf injustice which can be corrected by this Cotirt. c Justice .. . ~. . - ' \ ' '· · Whalen's dissent !s· a clear Indication that. there is a reasonable disagreement about . · thematerialfacts and aboutwhat.may be inferred from·,th~undisputedfacts of this case. ·Thus, . summary judgment \Vas not appropriate, and the lower courts. should . ' . . ' ---,· _, · . be :reversed. . .. C)' THE LOWER COURTS FAILED TO VIEW THE EVIDENCE IN THERECORb INALIGHT MOST FAVORABLE TO THE NON-·' .. 1\10\!ING·.PARTY, MARY,HETLZ. ·, ' ' ·In granting Barratt's and Erie's summary judgment motion, the trial court niade the following centraLdetermination - "Defe'ndant had no duty to anticipate · . ' ,.. --· - ) . . ~ ·that the SUV W()uldpull out from th~ stop 'sign directly in front of his vehicle."· ' \ - . . . ' ) . ' / ' ' · (R.18) In making this detennination,.th,.e Court·erroneously accepted13arratt"s self-- ,• , - , (. . • ·.. ' .r ' I . sel"virig claim thatthe Heitz SUV was .'~directly in front ~(his vehicle" as it enter~d ' , • , - • . ' ·.' - ' . I : ,. - '..._ .,' ~ ' . . , ' the inte~~ection;)eaving no tim~ ot opportunity to avoid th~ collision. This finding · ' ' ' c.om.pletely ignores the ~vidence ~n the Reoo. rd 9utlined above, which demonstrates . . ' - -.,· · th.at Barratt had ample time and.opportunity to a,void the· accident. The trial court's' :'" - ' I' ' ,· handling . of the evidence. at the summary judgment stage directly contravenes the . - ':- '' - - ' ,- mandate o( this Court to view the evidence in the light most :favorable to the .no11~ Page 16.of 20 movmg 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, 491N.Y.S.2d151 (1985). . . .. : ·. '' -. - ', " . ; , ' ' ' - '. -~ In its brief decision affirming the trial court, the. Appellate Division also erron.~ously and impropedy credited the testimony . of Barratt determining that· he , · ·braked as soon as he saw the Heltz. vehicle enter the intersection. Based. on this . concfosion,. the ·Appellate . Division· determined tbat there was nothing he could " ~ - ' ' -·' •• ' c _, · have done to .avoid the collis.ion ... See ~Exhibit A at 2. Like. the trial court, the , Appellate pivisioh ignored.the e~idenceirt the Record, which if viewed in a lighf . . . . most favorable to Heltz, shows· that given the gradual acceleration of the Beltz, . . .. vehicle from a full stop and the considerable distance it traversed .before the . ' ' . , . ~ ·, -- collision, Barratfhad ample tim~ and opportunity to.avoid the accident In fact, the. -, . . - ' . ' ' . - Appdlate Division majority fails to provide any analysis oft.he facts regarding the ) - accelerati.oh of the Heltz vehicle, the, distanc~ it traversed before impact artd t~e 109ation of the contact between the two vehicles.· Rather, like the trial court, the ( , . ' . . ' " ' ·Appellate Division · decision focuses ·exclusively . upon only one .. of Heltz;s ' ' - , , .. ' ' . . ' ' - , ·. argument in opposition fo · Defendar,its' motion, that the negligence of Barratt is - ,·_ " . ._ . ' -' . shown. by his excessive speed. It is only the dissenting opinion ofJustice Whalen - /· . : ' ·, , \ ,, - / : ' : / / - - ,, · which goes beyond this cursory analysis and gives proper consideration to the · Page 17 of 20 other ··evidence eo~tained iri ·the record which demonstrates the negligence of · . ·Barratt. The trial court and the majority opinion of the Appellate .Division foiind that Barratt and Erie were entit~ed to sumnuuyjudgment based up<)n t~e· reasoning of ' , - ' Wallace v. Kuhn, 23 A:D3d J 042, 804 N.Y.S.2d 187 (4th Dept. 2005), which / . . ' ' . ' .·reversed an Order of the Supreme C~urt Erie County, John M~ G.urran J.S.C.;. •• ~ I ' - ' '• ' , ' - ' • ' . ' •. « ' .. . ' ' • " • . ' th ' " .'' Rogersv. Edelman, .79 A.D.3d 1803, 913 N.Y.S.2d 854 (4 . Dept 2010); and, · . ·Galvin v. Zacholl, 302 A.D.2d 965, 755 N.Y.S.2d.l 75 (4th Dept. 2003}.. Each of ~ ' ' , .~ ,these cases expresses the valid. ,Jegal . principle that a mototist . is entitled to anticipate that .another motorist will obey the traffic laws that require them to yield the right-of-way. However, as recognized by Justice Whalen's dissent; these cases . 'j L ' ,. / < ' : are readi,ly distinguishable because the moving party. in those cases .had no' time to·.' react because of the sudd~n appea~ance ~f the cr~ssing vehicle; In .contrast, "the .· · ~ctio~s of the driver of the vehicle in which [Heitz] .was.a passenger were not-so · ' ', ~ ' ' , ' sudden.':. Exhibit AatJ. (Whalen J. dissenting):. · ·. The_ decision of the. lower courts to categorically credit Barratt's assertion . and outright dismiss .Heltz's\ claim should.be revers~d. Viewing the. evidence.·of · '- '- ' '• - '/ ' ~ ' ' - . -, . the.: record in a light most favorable to Mary .Heitz and providing her.· with ·the - . ., . ' ' ' - Page 18 of 20 , benefit of all reasonable inferences which can be drawn from the evidence, there .is ' ' - ./ -.· . - . - . . ' - ' ~ ·, ' ) . , , a question ()f fact regarding J:3'arratt' s ability to_ avoid ;the collision.·. POINT II - · .Heltz asks for pennission to submit a Reply . . ·.: Pursuant to 22 NYCRR 500.11 ( e), appella~t asks that she . be permitted to ( • ·., I • ' • " ' ' - ' submit a reply should she deem it necessary. -'.\. CONCLUSION . . ·· If allowed to. stand, the erroneous decisions of the lower courts to summarily • 7 . ' . ' ' .. 4isiniss the negligence claim of Mary Heitz will cause her substantial injust,ice .. Her - I - ' , - ' . ' : · , claims of negligence are supported hy eviclentiary proof in the re~ord and. should 'r , • ' ' ···be heard and con~iderecl by a )ury. Moreover, the failure of the· loW:er courts to . , view .. th~ ,evidence submitted .• ih,.conjltllction with 'the ·.·defendants', motion for 'I • ! ' . sllinm~ judgment in a light most favorable to ·Heitz: and. their failure to give Heitz . - ~ , • • I ~' • ( , the benefit of all reasonable inferences which can be drawn from the evidehceis · ' : -,- •• ·, / :( .-. •:, ' ' ' - ,· ' ' .,._ • • • •• ' r contrary to well, · establishe.d precedent. ·This is an issue of significant public · · - ' . . , - ·importance because aiarge majority ?f civil negligence cases heard by the courts ·Page 19 pf 20 of the State of New York include summary judgment motions'; that are ~ade and decided under this·· exacting yet·. frequently nlisapplied standard; For the reasons . outlined above arid, importantly, for the reasons outlined within Justice Whalen,'~ ' • • j - '.- ' • r ' ' • • ', < ' ~ dissenting opinion, .the Orders· of the lo~er courts. should be reversed and Mary fleltz' s .first amended complaint should be'reinstated. SRH/ c: · Phillip C. Barth, Esq . . Daniel R. Archilla,.Esq .. . . MaryHeltz Respectfully submitted, ·~.·,·.·.·• . ·.·.····.·£·.~· .. ·.· .. · ... ··- r . . - , . ', '' . . . ·, ~ . . ' ' . . - ,, , ' _. . . Scott R. Hapeman Page 20 of 20 · Exhibit A SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 184 CA °13-01101 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. MARY T. HELTZ, PLAINTIFF-APPELLANT, v BRUCE S. BARRATT AND ERIE LOGISTICS, LLC, DEFENDANTS-RESPONDENTS. (APPEAL NO. 1.) MAR 3 1 ~ORAND'CM AND ORDBR PERSONIUS MELBER LLP, BUFFALO (SCOTT R. HAPEMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. BARTH SULLIVAN BEHR, BUFFALO ·(ANDREW J. KOWALEWSKI OF COUNSEL) , FOR DEFENDANTS-RESPONDENTS. Appeal from .an order of the Supreme Court, Erie County (John M. Curran, J.), entered October 16, 2012 in a personal injury action. The order granted defendants' motion for summary judgment dismissing the first amended complaint. It is hereby ORDERED that the order so appealed from is affirmed without costs. Memorandum: Plaintiff connnenced this negligence action seeking damages for injuries she sustained when the vehicle in which she was a passenger, which was operated by her husband, was struck by a truck operated by Bruce S. Barratt (defendant) and owned by defendant Erie Logistics, LLC. On the evening in question, plaintiff's husband stopped his vehicle at a stop sign on East Centerville Road where it intersects with Route 243 in Rushford. Defendant was operating his truck at slightly above the speed limit of 55 miles per hour on Route 243, with the right-of-way. After coming to a stop, plaintiff's husband moved forward a bit and then stopped again. Not observing any oncoming traffic, plaintiff's husband drove into the intersection, where his vehicle was struck by defendant's truck .. There is no.stop sign or traffic control device for traffic on Route 243. In appeal No. 1, plaintiff appeals from an order granting defendants' motion for summary judgment diEJmissing the first amended complaint and, in appeal No. 2, she appeals from an order denying her motion for leave to reargue and renew her opposition to defendants' motion. With respect to appeal No. 2, we dismiss the appeal from the order therein to the extent tha:t it denied leave to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984), and we otherwise affirm the order in each appeal. ~rt is well settled that a driver who has the right-of-way is 23 -'-' -2- 184 CA 13-01101 entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield" (Malbory v David Chevrolet Buick Pontiac, Inc., 108 AD3d 1109, 1110; see Vehicle and Traffic Law§ 1142 [a]). Nevertheless, "a driver cannot blindly and wantonly enter an intersection . . . but, rather, is bound to use such care to avoid [aJ collision as an ordinarily prudent [motorist) would have used under the circumstances" (Strasburg v Campbell, 28 AD3d 1131, 1132 [internal quotation marks omitted] ) • Here, we conclude with respect to the order in appeal No. 1 that defendants met their initial 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' " {Daniels v Rumsey, 111 AD3d 1408, 1410; see Ithier v Harnden, 13 AD3d 1204, 1205). 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 "micros1;?conds" after he braked. '.Despite defendant's efforts to avoid the accident, his truck struck the rear of plaintiff's vel;licle on the passenger's side. In opposition to the motion, plaintiff failed to raise an issue pf 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 4 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) . We conclude with respect to the order in appeal No. 2 that supreme Court properly denied that part of plaintiff's motion for leave to renew. It is well settled that a motion for leave to renew must 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" {CPLR 2221 [el [21 , [3] ; see Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1170, lv denied 11 NY3d 825). Here, the only reason proffered by plaintiff. for failing to submit her expert's affidavit in opposition to defendants' motion'is that she believed that she had raised an issue of fact without it and that the court would therefore deny defendants' motion. That is not a reasonable justification for the failure to present the affidavit on the initial motion. As we have previously stated, a motion for leave to renew "is not a second chance freely given to parties who have not exercised. due diligence in making their first ·factual presentation" {Welch Foods v Wilson, 247 AD2d 830, 831 [internal quotation marks omitted]; see. Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d 527, 528; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303). · All concur except WHALEN, J., who dissents and votes to reverse in accordance with the following Memorandum: I respectfully dissent in appeal No. 1 because this case does not involve a truly unavoidable accident for which the grant of summary judgment would be appropriate (see generally DeBrine v VanHarken, 83 AD3d 1437, 1438). I would 24 -3- 184 CA 13-01101 therefore reverse the order in appeal No. l, deny defendants' motion for summary judgment, and reinstate the first amended complaint. Proximate cause is generally a question of fact for the jury {see Prystajko v Western N. Y. Pub. Broadcasting Assn., 57 AD3d 1401, l.403), and " '[iJt cannot be said as a matter of law that {one] driver's conduct was the sole proximate cause of the accident simply becauss his approach into the intersection was regulated by a stop sign ·whereas no. traffic control devices regulated [the other driver's] approach' " (Nevarez v S.R.M. Mgt •. Corp., 58 AD3d 295, 297). Supreme Court relied upon Ro~rs v Edelman (79 AD3d 1803, 1804.) and Galvin v zacholl (302 AD2d 965, 966-967, lv denied 100 NY2d 512) in granting defendants' motion for summary judgment dismissing the first amended .complaint but here, in contrast, the actions of the · driver of the vehicle in which plaintiff was a passenger were not so sudden. Unlike someone preparing to make a left turn across oncoming traffic in the absence of a traffic control device, or someone pulling into an intersection to make a left turn at a green light, here, Bruce s. Barratt (defendant) should have been alerted of a potential hazard based on the fact that the SUV in which plaintiff was a passenger accelerated from the stop sign and proceeded into the intersection. This case is factually similar to Nevarez {SS AD3d at 296-298) and Cooley v Urban (l AD3d 900, 900-901) in many important respects, and I see no reason why the outcome should be any different. From the stop sign on East Centerville Road, there is an eight-foot shoulder followed by the single east and westbound lanes of Route 243 and then another shoulder. There were no other cars on the road at the time of the accident. As noted by the majority, neither plaintiff nor her husband ever saw defendant's tractor trailer, and plaintiff's husband looked both ways before gradually accelerating across the intersection. Defendant first saw the SUV when he was between one eighth to one quarter of a mile from the intersection. His tractor trailer's ublack box report" indicates that defendant's speed was likely 64 miles per hour at that time while the speed limit on the road on which he was tr.aveling was 55 miles per hour. Defendant watched the SUV the whole way and, when he was ua couple hundred feet" away, saw the SUV accelerate from the stop sign in a standard fashion and enter the intersection. At that point, "[a]ll [defendant] could do was apply the brakes in anticipation of [the SUV] possibly spotting [him] and stopping or keeping going. 0 Defend.ant turned to the left when he realized that a collision was unavoidable; the SUV had fully entered his lane and it appeared as though the SUV "was going to keep going and not spot [him] at all.'" Defendant did not sound his horn, and his right front fender collided with the right rear quarter panel of the SUV. The black box recorded that defendant applied his brakes one second before the collision; he was traveling at a speed of SB miles per hour. Because defendant observed that the SUV entered the intersection without appearing to notice defendant from a ~istance of 200 feet, and considering that the black box report contradicts defendant's testimony that he first applied his brakes when he was 200 feet away, 25. -4- 184 CA 13-01101 I conclude that ther~ is a question of fact whether defendant used the requisite reasonable care when proceeding into the intersection and in attempting to avoid the collision (see Dorr v Farnham, 57 AD3d 1404, · 1405-1406; Cooley, 1 AD3d at 900-901; King v Washburn, 273 AD2d 725·, 726). A difference in a matter of seconds, or perhaps less, could have prevented this accident. The SUV had almost made it across the intersection and was in the westbound lane when the collision occurred. Defendant saw the SUV accelerate from the stop sign despite his app~oach, yet did not take any evasive action until one second before impact. Even so, defendant impacted only the panel behind the rear wheel of the SUV. Had defendant been traveling at the speed limit, braked and/or veered sooner, the ~ollision'rnight have been completely avoided. Considering the SUIT'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 been avoided. Defendant testified that ~ could·only apply his brakes in anticipation of the SUV possibly 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 wheri. 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) . . E~tered: March 28, 2014 26 Frances E. Cafarell Clerk of the Court . . . ;iiq.tmiu drlllitf ) .. APPELIATB DIV:TSION · J Fourth J~didal Department Clerk's Office, Roch~, N.Y. · · I, FRANCESE. CAFAREI..4 ClerkoftheAppellate.Di:visi.onoftheS'lipreme Court in the FQurth Judicial Dep~~t, :do hereby. Certify that~~ a :true COPY. .of: . . . the. original o.rdUJ now ~n file in tfiis office. .. IN WITNESS 'WJIBREOF, I have hereunto set 1'lo/ hand aild affixed the seal of said. Court at the Ci'ty of Roch£ster, N~ ii:Jrk, this MAR 2 ·a 2014. · 27