| Yelder v Walters |
| 2009 NY Slip Op 06012 [64 AD3d 762] |
| July 28, 2009 |
| Appellate Division, Second Department |
| Shakia M. Yelder, Respondent, v Newton V. Walters etal., Appellants. |
—[*1] Law Offices of Joseph Katz & Associates, P.C. (Ben Lyhovsky, Brooklyn, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Lane, J.), entered May 27, 2008, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
This action arises from an accident which occurred at the intersection of Linden Boulevardand 159th Street in Queens, when a vehicle operated by the plaintiff, Shakia M. Yelder, collidedwith a vehicle operated by the defendant Alvin Francis. At the time of the accident, the plaintiff,who was employed by the New York City Police Department as a traffic enforcement agent, wasdriving her patrol car south on 159th Street. Francis was driving a minivan owned by thedefendant Newton V. Walters east on Linden Boulevard, which is a two-way street with oppositelanes of travel separated by a double yellow line. It is undisputed that traffic on 159th Street atits intersection with Linden Boulevard is controlled by a stop sign, while Linden Boulevard is athrough street.
At her deposition, the plaintiff, who was 21 years old at the time of the accident, testifiedthat she came to a full stop at the stop sign governing traffic on 159th Street, and looked bothways before entering the intersection. She maintained that the closest vehicles she observed werestopped at a red light two blocks away from the intersection. Looking straight ahead, the plaintiffproceeded across the intersection at a speed of about 10 to 15 miles per hour. After crossing thedouble yellow line separating the west and east bound lanes of traffic on Linden Boulevard, theplaintiff's vehicle was struck by Francis's vehicle, which the plaintiff had not seen prior to thecollision.
Francis, who was 20 years old at the time of the accident and did not have a driver's license,testified at his deposition that he was driving east on Linden Boulevard, and that the maximumspeed he attained was between 20 and 30 miles per hour. He recalled that there were [*2]vehicles in front of him as he approached the intersection of LindenBoulevard and 159th Street, and estimated that the closest of these vehicles was three to four carlengths ahead. Francis stated that he saw the plaintiff's vehicle "immediately before thecollision," and estimated that three to five seconds elapsed from the moment he saw her vehicleuntil the moment of impact. When Francis first saw the plaintiff's vehicle, he "tried to swerve outof the way," by swerving to the right. However, the plaintiff's vehicle collided with the frontdriver's side of his vehicle. Francis testified that his foot was on the gas pedal when he first sawthe plaintiff's vehicle, but he was not specifically questioned as to whether he removed his footfrom the gas and hit the brake pedal prior to the collision.
Relying on the deposition testimony of the parties, the defendants moved for summaryjudgment, contending that the sole proximate cause of the accident was the plaintiff's failure toyield the right-of-way in violation of Vehicle and Traffic Law § 1142 (a). In opposition tothe motion, the plaintiff argued that the deposition testimony raised triable issues of fact as towhich vehicle entered the intersection first, what Francis's speed was at the time of the accident,and whether Francis had the opportunity to avoid the collision. In support of her position, theplaintiff emphasized her testimony that she had crossed over half of Linden Boulevard prior tothe collision, and submitted that the jury could infer that Francis's vehicle was stopped at a redlight two blocks away when she entered the intersection and that he was, thus, traveling at a highrate of speed. The Supreme Court denied the defendants' motion for summary judgment, findingthat there were issues of fact as to which vehicle entered the intersection first, and whether therewas any comparative negligence. We reverse.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw through the deposition testimony of the parties. The plaintiff, operating her vehicle on astreet governed by a stop sign, was required not only to stop, but to yield to vehicles on theintersecting thoroughfare operating with the right-of-way (see Vehicle and Traffic Law§ 1142 [a]). The plaintiff also was required to see the oncoming traffic through the properuse of her senses (see Goemans vCounty of Suffolk, 57 AD3d 478, 479 [2008]; Hull v Spagnoli, 44 AD3d 1007 [2007]; Friedberg v Citiwide Auto Leasing, Inc.,22 AD3d 522, 523 [2005]). Thus, the plaintiff's failure to yield to Francis's vehicle,which was traveling on Linden Boulevard with the right-of-way, and her admitted failure to seethat vehicle until the moment of impact, demonstrates her negligence as a matter of law (see Jones v Castro-Tinco, 62 AD3d957 [2009]; Jaramillo v Torres,60 AD3d 734 [2009]; Wesh vLaidlaw, 59 AD3d 534 [2009]; Goemans v County of Suffolk, 57 AD3d 478, 479 [2008]; Hullv Spagnoli, 44 AD3d at 1007; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d at522; Bongiovi v Hoffman, 18AD3d 686, 687 [2005]). Indeed, it has been observed under similar circumstances that "theundisputed fact that plaintiff was unable to drive through the intersection without being struck bydefendant's vehicle is compelling evidence of the immediate hazard created by defendant'svehicle as it approached the intersection" (Le Claire v Pratt, 270 AD2d 612, 613 [2000]).
Furthermore, we disagree with our dissenting colleague's conclusion that Francis'sdeposition testimony was insufficient to make a prima facie showing that he was free fromcomparative negligence. Regardless of which vehicle entered the intersection first, Francis, asthe driver with the right-of-way, was entitled to anticipate that the plaintiff would obey trafficlaws which required her to yield (see Wesh v Laidlaw, 59 AD3d at 534; Goemans vCounty of Suffolk, 57 AD3d at 479; Melendez v County of Nassau, 56 AD3d 736, 738 [2008];Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d at 523; Bongiovi v Hoffman,18 AD3d at 687). Although a driver with a right-of-way also has a duty to use reasonablecare to avoid a collision (see Maliza vPuerto-Rican Transp. Corp., 50 AD3d 650, 651 [2008]; Exime v Williams, 45 AD3d 633[2007]; Mateiasevici v Daccordo,34 AD3d 651 [2006]), it has been recognized that a driver with the right-of-way whohas only seconds to react to a vehicle which has failed to yield is not comparatively negligent forfailing to avoid the collision (see Jaramillo v Torres, 60 AD3d at 735; DeLuca v Cerda, 60 AD3d 721[2009]; Meliarenne v Prisco, 9AD3d 353, 353 [2004]; Le Claire v Pratt, 270 AD2d at 613; Lupowitz v Fogarty,295 AD2d 576 [2002]). Moreover, Francis' deposition testimony demonstrates that he didindeed attempt to take evasive action by swerving out of the path of the plaintiff's vehicle.Although Francis did not specifically indicate that he also attempted to avoid the collision bybraking, given the brevity of the period in which he had to react, his testimony was sufficient todemonstrate that he acted reasonably.[*3]
Furthermore, in opposition to summary judgment, theplaintiff failed to raise a triable issue of fact. In light of the plaintiff's admission that she did notsee Francis's vehicle before the impact, her allegation that he may have been negligentlytraveling at an excessive rate of speed was speculative and, thus, insufficient to defeat summaryjudgment (see Batts v Page, 51AD3d 833, 834 [2008]; McCain vLarosa, 41 AD3d 792, 793 [2007]; Exime v Williams, 45 AD3d at 634;Mateiasevici v Daccordo, 34 AD3d at 651; Trzepacz v Jara, 11 AD3d 531 [2004]; Meliarenne v Prisco,9 AD3d at 354).
We note that our dissenting colleague, focusing on Francis's testimony that three to fiveseconds elapsed between the time he observed the plaintiff's vehicle and the collision, and that hewas traveling no faster than 30 miles per hour, offers various calculations as to the number offeet Francis had to stop to avoid the collision, using the formula speed ÷ time = distance.However, the plaintiff made no such argument in opposition to summary judgment, and offeredno expert's affidavit to calculate the distance which Francis had to avoid the accident. As theCourt of Appeals recently cautioned, appellate courts "are not in the business of blindsidinglitigants, who expect us to decide their appeals on rationales advanced by the parties, notarguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519 [2009]). Thus, as a matterof fairness to the parties, we do not deem it appropriate to consider the issue of whether Franciswas comparatively negligent on a ground they have not raised. In any event, by attempting tocalculate the number of feet in which Francis had to respond from the first moment he saw theplaintiff's vehicle, the dissent disregards the fact that Francis, as the driver with the right-of-way,was entitled to anticipate that the plaintiff would yield. Thus, Francis's response time should notbe measured from the moment he observed the plaintiff's vehicle. Furthermore, as we havepointed out, it has been recognized in circumstances similar to those at bar that a driver who hasonly seconds to react to a vehicle which has failed to yield is not comparatively negligent for thefailure to avoid the collision. Finally, while we realize that the testimony of the two driversdiverged on issues such as the weather conditions at the time of the accident, whether 159thStreet was a one- or two-way street, and whether another vehicle preceded Francis's vehicle intothe intersection, these disputes are not material to our determination. The plaintiff's failure toyield the right-of-way in violation of Vehicle and Traffic Law § 1142 (a) establishes hernegligence as a matter of law, and although Francis was a young and unlicensed driver, therecord is devoid of evidentiary proof that he contributed to the accident by traveling at anexcessive rate of speed, or had sufficient time to avoid the collision and negligently failed to takereasonable steps to do so. Prudenti, P.J., Dillon, and Eng, JJ., concur.
Skelos, J., dissents and votes to affirm the order appealed from, with the followingmemorandum: The plaintiff, Shakia M. Yelder, a 21-year-old traffic enforcement agentemployed by the City of New York, was operating a city-owned vehicle at the time she wasinvolved in a collision with a vehicle owned by the defendant Newton V. Walters and operatedby the defendant Alvin Francis, a 20-year-old student and unlicensed driver. The accidentoccurred on March 2, 2004, at the intersection of 159th Street and Linden Boulevard in Queens.The plaintiff's southbound direction of travel on 159th Street was controlled by a stop sign atLinden Boulevard. There were no traffic control devices governing Francis's direction of travelon Linden Boulevard at its intersection with 159th Street.
The defendants moved for summary judgment dismissing the complaint on the ground thatthe plaintiff failed to yield the right-of-way to the defendants' vehicle in violation of Vehicle andTraffic Law § 1142 (a) and that said violation was the sole proximate cause of theaccident. The only sworn statements submitted in support of the defendants' motion for summaryjudgment are the transcripts of the examinations before trial of the plaintiff and Francis. Inopposition, the plaintiff also relied on the deposition transcripts submitted in support of thedefendants' motion, as annotated in the affirmation of her counsel. The Supreme Court found thatthe defendants established, prima facie, their entitlement to judgment as a matter of law, but thatthe plaintiff demonstrated a triable [*4]issue of fact. Accordingly,the Supreme Court denied the defendants' motion.
A party seeking summary judgment has the burden of tendering evidentiary proof sufficientto establish its entitlement to judgment as a matter of law by demonstrating the absence of anymaterial triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Seidman v Industrial Recycling Props.,Inc., 52 AD3d 678, 680 [2008]; Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902[2008]). Failure of the moving papers to eliminate all material issues of fact requires the denialof the motion for summary judgment, without regard to the sufficiency of the opposition papers(see Alvarez v Prospect Hosp., 68 NY2d at 324). Indeed, the burden on the movant issuch that summary judgment must be denied even if the existence of a triable issue of fact is onlyarguable (see Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968];Baker v Briarcliff School Dist., 205 AD2d 652, 653 [1994]). In addition, a courtdeciding a motion for summary judgment is required to view the evidence presented in the lightmost favorable to the party opposing the motion and to draw every reasonable inference from thepleadings and proof submitted by the parties in favor of the opponent to the motion (seeMyers v Fir Cab Corp., 64 NY2d 806 [1985]; Nicklas v Tedlen Realty Corp., 305AD2d 385, 386 [2003]; Fleming vGraham, 34 AD3d 525, 526 [2006], revd on other grounds 10 NY3d 296[2008]; Perez v Exel Logistics, 278 AD2d 213, 214 [2000]).
Notwithstanding the defendants' proof that the plaintiff's direction of travel was controlledby a stop sign and, even assuming that the defendants have proven that the plaintiff failed toyield the right-of-way to the defendants' vehicle, a review of the record reveals that thedefendants failed to eliminate a question of fact as to all of the material allegations of theirnegligence as set forth in the complaint and bill of particulars (see Kuri v Bhattacharya, 44 AD3d718 [2007]; Sayers v Hot, 23AD3d 453, 454 [2005]). Accordingly, the motion was correctly denied, although theSupreme Court should have so ruled because the defendants failed to establish their prima facieentitlement to judgment as a matter of law (see Matthews v Smallridge, 59 AD3d 1077 [2009]; Lopez v Reyes-Flores, 52 AD3d785, 786 [2008]; Borukhow v Cuff,48 AD3d 726, 727 [2008]; Burghardt v Cmaylo, 40 AD3d 568 [2007]; Campbell-Lopez v Cruz, 31 AD3d475, 476 [2006]; see generally Alvarez v Prospect Hosp., 68 NY2d at 320).
The plaintiff testified that she was proceeding south on 159th Street, a two-way street, andthat she came to a full stop at its intersection with Linden Boulevard. She looked to her left andright twice, "didn't see anything coming," and then "proceeded across the intersection." Hervehicle was struck after she was "fully across" the double yellow line of Linden Boulevard. Theplaintiff did not see the vehicle that struck her vehicle. The defendants offered no proof tocontradict the plaintiff's testimony that she came to a full stop at the intersection. Rather, theycontended only that the plaintiff's failure to yield the right of way to their vehicle was the soleproximate cause of the accident. Even assuming the plaintiff failed to see the defendants' vehicle,and failed to yield the right of way such that her negligence is established as a matter of law (see e.g. Gergis v Miccio, 39 AD3d468, 468-469 [2007]), that does not end the inquiry because there may be more than oneproximate cause of an accident (see Lopez v Reyes-Flores, 52 AD3d at 786;Burghardt v Cmaylo, 40 AD3d at 569; Campbell-Lopez v Cruz, 31 AD3d at 476;Scibelli v Hopchick, 27 AD3d720 [2006]; Cox v Nunez, 23AD3d 427 [2005]; Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381[2003]). In addition to offering prima facie proof of the plaintiff's negligence, the defendantswere required to demonstrate that Francis was free of comparative negligence (see Lopez vReyes-Flores, 52 AD3d at 786; Burghardt v Cmaylo, 40 AD3d at 569;Campbell-Lopez v Cruz, 31 AD3d at 476; Scibelli v Hopchick, 27 AD3d at 720;Cox v Nunez, 23 AD3d at 427; Hernandez v Bestway Beer & Soda Distrib., 301AD2d at 381). That is, under the circumstances of this case, the defendants were required todemonstrate that Francis met his obligation "to exercise reasonable care to avoid a collision eventhough [the plaintiff's] car was controlled by a 'Stop' sign" (Stein v Whitehead, 40 AD2d89, 93 [1972]; see Narracci v Brigati,57 AD3d 632 [2008]; Virzi vFraser, 51 AD3d 784 [2008]; Cox v Nunez, 23 AD3d at 427) and that he wasthereby not partially at fault for causing the accident (see Lara v Simmons, 29 AD3d 642, 643 [2006]; Paljevic v Smith, 20 AD3d 517,518 [2005]; Bodner v Greenwald, 296 AD2d 564, 565 [2002]; King v Washburn,273 AD2d 725, 726 [2000]).
The formula speed ÷ time = distance, as a scientific fact, the practical [*5]application of which is generally known and recognized by ourcourts (see e.g. Ferrer v Harris, 55 NY2d 285, 291-292 n 3 [1982]; Penzell v State ofNew York, 120 Misc 2d 600, 602 n 3 [1983]; cf. Brown v Muniz, 61 AD3d 526 [2009] [majority rejects dissent'ssuggestion that the court take judicial notice of a novel fact, driver reaction time, that has not yetbeen recognized by the courts of this state]), is entitled to judicial notice without resort to experttestimony (see generally People v Magri, 3 NY2d 562, 566 [1958]; Prince, Richardsonon Evidence § 2-204 [Farrell 11th ed]).
Contrary to the majority's suggestion that we have "blindsided" the defendants by ourreference to the speed ÷ time = distance formula, we note that the "rationale" as to thedefendants' liability which the formula is used to support is specifically set forth as a contentionof negligence in the plaintiff's bill of particulars, to wit: the plaintiff alleges that Francis wasnegligent in that he failed to "adequately slow, stop or otherwise decrease the speed of [his]motor vehicle so as to avoid the occurrence" and "failed and neglected to turn, swerve orotherwise steer [his] motor vehicle . . . so as to avoid the collision." The applicationof this formula is particularly relevant in the posture of this motion for summary judgment sincethe defendants offered no proof to establish how far Francis was from the intersection when hefirst observed the plaintiff's vehicle. As will be demonstrated below, the application of thisformula does not call upon facts, or a theory of liability, not found in the record (cf. Misicki v Caradonna, 12 NY3d511 [2009]) but merely relies on data (time and speed) provided by Francis in hisexamination before trial. Under the circumstances, it is appropriate to consider the calculateddistance as well as all other material and relevant facts when we consider whether Francis tooksufficient measures, as a matter of law, to "adequately slow, stop or otherwise decrease the speedof [his] motor vehicle so as to avoid the occurrence." Judicial notice of the application of thiswell known and accepted formula in our consideration of this motion for summary judgmentdoes not, unfairly or otherwise, preclude the defendants from challenging the plaintiff's versionof the happening of the accident when the case returns to the Supreme Court for trial (see Rosario v Morias, 8 AD3d108 [2004]; cf. Brown v Muniz,61 AD3d 526 [2009]).
Francis did not specify the precise rate of speed that his vehicle was traveling when he firstsaw the plaintiff's vehicle at the intersection. Rather, he stated that his foot was on the gas, thathe was traveling less than 30 miles per hour, and that "[t]hree to five seconds" passed from whenhe first observed the plaintiff's vehicle until the moment of impact. Using the well-establishedformula speed ÷ time = distance, at 30 miles per hour for five seconds, Francis had adistance of 219 feet within which to take a reasonable course of action to avoid the collision withthe vehicle he observed at the intersection. Even at 25 miles per hour, Francis had a distance of183 feet to alter the direction of his vehicle during the five seconds before impact. In this regard,we note that the cases relied upon by the majority each have substantially different time periodswithin which the moving party had to react to the events as they unfolded (see Jaramillo v Torres, 60 AD3d734 [2009] [one second]; DeLuca vCerda, 60 AD3d 721 [2009] [time undefined]; Meliarenne v Prisco, 9 AD3d 353 [2004] [split second]; LeClaire v Pratt, 270 AD2d 612, 613 [2000] [two or three seconds "generallyinsufficient" (emphasis added)]; Lupowitz v Fogarty, 295 AD2d 576 [2002] [twoseconds]). More significantly, those cases do not excuse a driver's failure to apply brakes,remove his or her foot from the accelerator or otherwise make any effort to slow down his or hervehicle. Rather, they merely stand for the proposition that under the circumstances therepresented, no material question existed as to the driver's comparative negligence in avoiding theaccident.
Francis testified that upon observing the plaintiff's vehicle, he merely "tried to swerve out ofthe way . . . to the right" in an effort to avoid the accident. He offered nojustification for his failure to brake or otherwise slow his vehicle during the "three to five"seconds that passed from the moment he first observed the plaintiff's vehicle until the moment ofimpact (see Romano v 202 Corp., 305 AD2d 576, 577 [2003]; King v Washburn,273 AD2d 725, 725 [2000]; compare Matt v Tricil [NY], Inc., 260 AD2d 811, 812[1999]).
Francis's testimony offered in support of the defendants' motion for summary judgmentfailed to satisfy the defendants' burden of establishing, as a matter of law, that Francis exercisedreasonable care to avoid the collision upon observing the plaintiff's vehicle in the intersection(see Lopez v Reyes-Flores, 52 AD3d at 786; Burghardt v Cmaylo, 40 AD3d at569; Campbell-Lopez v Cruz, 31 AD3d at 476; Scibelli v Hopchick, 27 AD3d at720; Cox v Nunez, 23 [*6]AD3d at 427; Hernandez vBestway Beer & Soda Distrib., 301 AD2d at 381).
Moreover, the evidence submitted by the defendants in support of their motion for summaryjudgment also left other gaps in the proof. They failed to establish the speed or location of theplaintiff's vehicle when Francis first observed it. The defendants did not prove that the plaintiff'svehicle was stopped at the intersection, proceeding through the intersection, or at some otherlocation when Francis first observed it. Absent proof as to the distance of Francis's vehicle fromthe intersection when he first observed the plaintiff's vehicle, the location of the plaintiff'svehicle when Francis first observed it, and more specific proof as to the speed of the vehicles, "atriable issue of fact exists as to whether the [defendants' vehicle] was so close to the intersection. . . as to constitute an immediate hazard" such that plaintiff should not haveproceeded into the intersection from a full stop (Calemine v Hobler, 263 AD2d 495,495-496 [1999]; see King v Washburn, 273 AD2d at 725). The majority suggests"Francis's response time should not be measured from the moment he observed the plaintiff'svehicle." In doing so, the majority ignores the fact that Francis offered no other time period forus to consider in our analysis of the circumstances surrounding the happening of the accident. Itis not the Court's responsibility to fill those gaps. Surely, if Francis had observed the plaintiff'svehicle moving through the intersection five seconds before impact, the assessment of hisculpability would be different from the situation where the plaintiff still had been at a full stop,in which instance Francis would be entitled to assume that the plaintiff would obey the trafficregulations (compare Matthews vSmallridge, 59 AD3d 1077 [2009]; Fleming v Graham, 34 AD3d at 526; Koenig v Lee, 53 AD3d 567[2008]; Matt v Tricil [NY], Inc., 260 AD2d at 812).
Conspicuously absent from their motion for summary judgment, as well as their brief onappeal, is any reference by the defendants to Francis's direction of travel. Indeed, Francis neverspecifically testified as to his direction of travel at the moment of impact. However, relying onhis testimony that the plaintiff was proceeding south and that the point of impact was on the"driver's side and the front panel" of his vehicle, it appears that Francis was proceeding east.Swerving his vehicle to the right or east only served to move his vehicle in a vector that wouldintersect with the vector representing the plaintiff's direction of travel. Had Francis swerved tothe left or west, the vector representing his vehicle's direction of travel would have taken hisvehicle behind the plaintiff's vehicle. Francis offered no explanation, such as that there was anoncoming car preventing him from doing so, for not moving his vehicle to the left. In support ofthe motion for summary judgment, the defendants offered no evidence to justify, as a matter oflaw, Francis's failure to take some other evasive action (see King v Washburn, 273AD2d at 726).
Moreover, the parties' conflicting testimony on other material and ancillary issues of factdemonstrates the presence of questions concerning their respective credibility that may impactthe determination of the trier of fact. The parties' respective testimony as to the point of impact isin dispute. The plaintiff testified that her vehicle had passed the double yellow line when hervehicle was struck by the defendants' vehicle. On the other hand, Francis contended that hisvehicle was struck by the plaintiff's vehicle. Francis testified that 159th Street is a one-waystreet, whereas the plaintiff testified that 159th Street is a two-way street. The plaintiff'stestimony that there were no vehicles approaching the intersection before she left a full stop,conflicts with Francis's testimony that there was a vehicle in front of his vehicle as he proceededon Linden Boulevard. In addition, their respective recollections of the weather conditions werein conflict. The plaintiff testified that the weather was "sunny, clear," while Francis testified thatit was "overcast" and "just started to drizzle." These discrepancies, together with the absence ofproof as to time, distance, and specific speed, demonstrate that there are material issues of fact asto the traffic conditions, the configuration and condition of the roadway, the point of impact, andthe circumstances surrounding the happening of the accident.
The resolution of these disputed facts may be considered by a jury in assessing each parties'ability to correctly and truthfully observe, recall, and relate the circumstances surrounding thehappening of this accident. Such credibility determinations should not be resolved on a motionfor summary judgment (see Kolivas vKirchoff, 14 AD3d 493 [2005]; see generally S.J. Capelin Assoc. v Globe Mfg.Corp., 34 NY2d 338, 341 [1974]).[*7]
Therefore, I respectfully dissent and vote to affirm.