| Lopez-Viola v Duell |
| 2012 NY Slip Op 07935 [100 AD3d 1239] |
| November 21, 2012 |
| Appellate Division, Third Department |
| Franklin Lopez-Viola, Appellant, v Norman O. Duell et al.,Defendants, and Bernard H. St. Amour et al., Respondents. |
—[*1] Eisenberg & Kirsch, Liberty (Betsy Garrison of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (J. Sise, J.), entered November 14, 2011in Montgomery County, which granted a motion by defendants Bernard H. St. Amour andChristine M. St. Amour for summary judgment dismissing the complaint against them.
Plaintiff commenced this negligence action to recover damages for personal injuries hesustained as a passenger in a car driven by defendant Kristen E. Duell (hereinafter Duell) andowned by defendant Norman O. Duell. The Duell vehicle was traveling eastbound on StateHighway 5S and attempted to make a left turn across the westbound lanes of the highway inorder to enter a Target distribution center, when it collided with a truck driven by defendantBernard H. St. Amour (hereinafter defendant) and owned by defendant Christine M. St. Amour,which was traveling westbound. Duell later pleaded guilty to a violation of Vehicle and TrafficLaw § 1141 for failing to yield the right-of-way to defendant.
Defendant and Christine M. St. Amour (hereinafter collectively referred to as defendants)moved for summary judgment on the ground that there was no evidence that defendant wasnegligent or that his negligence, if any, was a proximate cause of the accident. [*2]Despite opposition from both plaintiff and the Duells, SupremeCourt granted defendants' motion and dismissed the complaint against them, finding that theassertions of plaintiff's expert were not credible and that Duell was the sole proximate cause ofthe accident. Plaintiff now appeals.[FN1]
We reverse. In support of their motion, defendants offered, among other things, asurveillance video from the Target distribution center depicting the accident (hereinafter theTarget video)[FN2]and an affidavit of expert accident analyst Bradford Silver. Defendants argue that this evidence,together with defendant's affidavit, established that Duell's failure to yield the right-of-way todefendant's oncoming vehicle created an emergency situation to which defendant did not havesufficient time to react. They also contend that the contrary opinion of plaintiff's expert wasspeculative and conclusory and, thus, insufficient to create a question of fact as to defendant'snegligence.
As relevant here, defendant alleges in his affidavit that he was traveling at or about theposted speed limit of 55 miles per hour, but that he slowed down to 50 miles per hour and tookhis foot off the accelerator when, after exiting a curve approximately 800 to 1,000 feet before theintersection, he observed a line of vehicles exiting from Target. As defendant emerged from thecurve, he observed Duell's vehicle stopped in the left-turn-only lane facing him and then rollforward at approximately 2 to 3 miles per hour without a turn signal on, which prompted him toslow further to 45 or 50 miles per hour and apply light brake pressure. According to defendant,when he was about 100 feet from Duell, she proceeded to enter his lane and he attempted to stopby applying hard brake pressure, but was unable to avoid the collision.
In his affidavit, Silver set forth the basis for his opinion that defendant was faced with anemergency situation, to which he reacted reasonably. Silver concluded, among other things, thatdefendant was traveling at or slightly less than 55 miles per hour at the time of the accident andthat his vehicle would have been visible to Duell for 12 to 13 seconds before defendant reachedthe intersection. Silver also concluded that Duell rolled forward and then abruptly turned in frontof defendant, and that, in the approximately 1.5 seconds that elapsed between the time Duellinitiated her turn and the collision, defendant braked and steered to the right, which was the onlyevasive action available to defendant under the circumstances. In our view, based upon theforegoing evidence, Supreme Court correctly determined that defendants met their initial burdenof demonstrating their entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Andrew R. Mancini Assoc., Inc. v Mary Imogene Bassett Hosp., 80AD3d 933, 935 [2011]), thus shifting the burden to plaintiff to produce evidence sufficientto demonstrate a material issue of fact (see Zuckerman v City of New York, 49 NY2d557, 562 [1980]; Helfer v Chapin,96 AD3d 1270, 1272 [2012]).
In opposition to the motion, the Duells offered, among other things, the police accidentreport and the deposition transcripts of defendant and Duell. Duell highlighted defendant's [*3]testimony that he was very familiar with the location of the accidentand that, prior to the collision, he noticed a high volume of traffic exiting Target. Duell alsonoted that, although defendant testified that he observed her begin to move forward when he wasapproximately 500 feet away, he turned his attention toward the traffic exiting Target and, whenhe looked back, she was crossing through his lane of travel. Defendant testified that he did notsound his horn or turn his wheel prior to the collision.
Duell's testimony presented a different version of the events. According to Duell, she wasstopped for approximately two minutes in the turning lane while waiting for cars to exit Targetand did not see any oncoming traffic before she initiated a left turn with her signal light activated.Duell testified that, after she started to turn, she noticed that defendant was 30 feet away and shestopped in the intersection. She estimated that defendant was traveling 55 or 60 miles per hourand that about five seconds elapsed between the time she observed defendant's truck and theimpact.
In addition, plaintiff offered, among other things, an affidavit of expert accident analystLawrence Levine, who set forth the opinion that the collision was caused, at least in part, bydefendant's excessive speed for the conditions and his failure to take cautionary or evasivemeasures when confronted with Duell's vehicle in his lane of traffic. Significantly, Levine opinedthat Duell was traveling between 11 and 12 miles per hour as she turned, and that she neverstopped her vehicle before impact. Levine also directly contradicted Silver's opinion regardingDuell's turn time, asserting that the Target video showed it to be 3.5 seconds. Based upon hiscalculations, Levine further opined that defendant was traveling in excess of 65 miles per hourwhen he collided with the Duell vehicle. Levine concluded that, at that speed, the skid mark leftby defendant's vehicle would indicate that he had braked for less than a second, suggesting thathe did not slow down when he saw or approached the traffic at the intersection. Pursuant toLevine's calculations, even if defendant were traveling at 60 miles per hour, he should have beenable to stop his truck within the amount of time it took Duell to cross his lane of travel.
Initially, we note that although Duell's plea of guilty to failure to yield is evidence of hernegligence, it does not preclude the existence of a fact issue as to defendant's comparative fault(see Vehicle and Traffic Law § 1180 [e]; Boston v Dunham, 274 AD2d708, 709-710 [2000]; King v Washburn, 273 AD2d 725, 726 [2000]; Greco vBoyce, 262 AD2d 734, 735 [1999]). Additionally, while a driver "in a proper traffic lane isnot required to anticipate that a vehicle traveling in the opposite direction will cross over into thatlane" (Khaitov v Minevich, 277 AD2d 805, 806 [2000]; see McGraw v Ranieri,202 AD2d 725, 727-728 [1994]), in order for a driver to be entitled to summary judgment basedupon the emergency doctrine, he or she must demonstrate, as a matter of law, that the emergencysituation with which he or she was confronted was not of his or her own making "and that his orher reaction was reasonable under the circumstances such that he or she could not have doneanything to avoid the collision" (Cahoonv Frechette, 86 AD3d 774, 775 [2011]; see Hubbard v County of Madison, 93 AD3d 939, 940 [2012],lv denied 19 NY3d 805 [2012]).
Here, when we view the evidence in the light most favorable to plaintiff (see Cole v Roberts-Bonville, 99 AD3d1145, 1148 [2012]), we conclude that the submissions of Duell and plaintiff were sufficientto defeat defendants' motion for summary judgment. Even though some of the conclusions ofboth experts are arguably refuted by the [*4]Target video,Levine's opinions are not so speculative as to be utterly devoid of merit (see Hyatt v Price Chopper Operating Co.,Inc., 90 AD3d 1218, 1220 [2011]). Given the generally competent conflicting expertopinions, Supreme Court should not have made credibility determinations on defendants' motion.Any shortcomings as to those opinions affect the weight to be accorded to them by the trier offact, not their admissibility (see Hyatt v Price Chopper Operating Co., Inc., 90 AD3d at1220; Herzog v Schroeder, 9 AD3d669, 670 [2004]; compareRockefeller v Albany Welding Supply Co., 3 AD3d 753, 756 [2004]). Further, despiteDuell's guilty plea to violating Vehicle and Traffic Law § 1141, the parties' conflictingversions of the event and the contrary expert opinions demonstrate the existence of questions offact as to whether, among other things, defendant was presented with an emergency situation and,if so, whether he contributed to its making. Accordingly, the order of Supreme Court must bereversed.
Mercure, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.
Footnote 1: The Duells have not participatedin this appeal.
Footnote 2: We note that, while both expertsrelied, in part, on the Target video (seegenerally Green v South Colonie Cent. School Dist., 81 AD3d 1139, 1141 [2011]),Supreme Court declined to view such video. Nevertheless, we may do so upon our review of theentire appellate record.