| Corina v Boys & Girls Club of Schenectady, Inc. |
| 2011 NY Slip Op 02100 [82 AD3d 1477] |
| March 24, 2011 |
| Appellate Division, Third Department |
| Holly Corina, Individually and as Parent and Guardian of KevinCorina, an Infant, Appellant, v Boys and Girls Club of Schenectady, Inc., et al., Defendants, andMark Messercola, Respondent. |
—[*1] Burke, Scolamiero, Mortati & Hurd, L.L.P., Albany (John D. Holt of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Kramer, J.), entered February 11,2010 in Schenectady County, which granted defendant Mark Messercola's motion for summaryjudgment dismissing the complaint against him.
During the afternoon of May 18, 2007, plaintiff's 12-year-old son left defendant RotterdamBoys and Girls Club and attempted to cross Curry Road, east of its intersection with NorthWescott Road in the Town of Rotterdam, Schenectady County. He ostensibly planned to join asmall group of youths on the south side of Curry Road. While running across the road from northto south, he was struck by a vehicle operated by defendant Mark Messercola that wasaccelerating in the eastbound lane of Curry Road, after having stopped at a red light. Plaintiffcommenced this negligence action against, among others, Messercola. Following joinder of [*2]issue, Messercola moved for summary judgment dismissing thecomplaint against him. Supreme Court granted the motion,[FN*]and plaintiff now appeals.
Messercola, as the proponent of a motion for summary judgment, had the initial burden ofestablishing that "no triable issues of fact existed [regarding] whether [he] acted prudently underthe circumstances" (DeJesus v Alba,14 NY3d 860, 861 [2010]). According to a police report, an investigator found thatMessercola was traveling 30 miles per hour in a 35-mile-per-hour speed zone. This evidence wasconsistent with Messercola's deposition testimony regarding his speed. Plaintiff failed to provideanything other than speculation that Messercola's speed played any role in the accident. Hence,there are no questions of fact on this issue.
On the other hand, factual questions exist as to whether Messercola should have seenplaintiff's son earlier and could have reacted to avoid or lessen the impact. It is undisputed thatplaintiff's son crossed the road in front of Messercola's car, perhaps negligently, and came intocontact with the car near the passenger-side headlight. To get to that point, plaintiff's son crossedthe northern shoulder of the road, traversed the entire westbound lane of traffic, the double-solidcenter line and most of the eastbound lane before the impact. In a written statement he gave topolice on the date of the accident, Messercola stated, "I did not see [the child] until he hit thewindshield of my car." The police report also indicates that Messercola did not see the child"until impact occurred." At his deposition, Messercola testified that he saw a group of children tohis right in his peripheral vision, but he was looking straight ahead at the time of the accident.Messercola further testified that he first saw plaintiff's son "when he was directly in front of mycar," and did not know why he had not seen the child before that time, although he speculatedthat it was possible that the child crossed behind a larger vehicle in the opposite lane. Whendirectly asked whether he had seen the child "cross the oncoming lane of traffic at all,"Messercola responded "Not at all. I saw him when he was directly in front of me in my driver'sseat." This information was sufficient to create a question of fact as to whether Messercola failedto keep a proper lookout (see Reed v City of Syracuse, 309 AD2d 1195, 1196 [2003];Boston v Dunham, 274 AD2d 708, 709-710 [2000]). Had he seen the child crossing theopposite lane of traffic, Messercola may have been able to brake earlier or take other evasivemeasures so as to avoid the collision or lessen its impact.
Although a witness driving behind Messercola averred that "[t]here was absolutely no way. . . [he] could have stopped to avoid hitting the [child]," police investigation notesindicate that this witness "did not see the events leading [up] to the collision" and she first sawthe child "airborne post-impact." The witness averred that she saw the child at the side of theroad, and the next thing she saw was Messercola's car striking the child and the child in the airafter having been hit. Under these circumstances, there is a factual question as to whether shesaw enough to determine if Messercola could have avoided or mitigated the impact. The policeinvestigator based his conclusion—that "no evasive action would have prevented thecollision"—primarily on information gathered from this witness and Messercola, renderingthat conclusion subject to the [*3]same factual questions raised bythe statements of those individuals.
In general, "whether a defendant has conformed to the standard of conduct required by law isa question of fact necessitating a trial" (St. Andrew v O'Brien, 45 AD3d 1024, 1028 [2007], lv deniedand dismissed 10 NY3d 929 [2008] [internal quotation marks and citations omitted]).Because Messercola failed to meet his burden of establishing as a matter of law that he actedprudently under the circumstances, his motion for summary judgment should have been denied.
Mercure, Peters and Garry, JJ., concur; Cardona, P.J. and Lahtinen, J., not taking part.Ordered that the order is reversed, on the law, with costs, and motion denied.
Footnote *: Supreme Court did not issue awritten decision and no transcript of the bench decision is included in the record on appeal. Wenote that our review is greatly enhanced when the trial court explains its reasoning in writing.Where such a writing unfortunately does not exist, the parties are encouraged to obtain andprovide us with a transcript of any oral decision.