| Heltz v Barratt |
| 2014 NY Slip Op 02161 [115 AD3d 1298] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| Mary T. Heltz, Appellant, v Bruce S. Barratt et al.,Respondents. (Appeal No. 1.) |
—[*1] Barth Sullivan Behr, Buffalo (Andrew J. Kowalewski of counsel), fordefendants-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 commenced this negligence action seeking damages forinjuries she sustained when the vehicle in which she was a passenger, which wasoperated 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'shusband stopped his vehicle at a stop sign on East Centerville Road where it intersectswith Route 243 in Rushford. Defendant was operating his truck at slightly above thespeed limit of 55 miles per hour on Route 243, with the right-of-way. After coming to astop, plaintiff's husband moved forward a bit and then stopped again. Not observing anyoncoming traffic, plaintiff's husband drove into the intersection, where his vehicle wasstruck by defendant's truck. There is no stop sign or traffic control device for traffic onRoute 243. In appeal No. 1, plaintiff appeals from an order granting defendants' motionfor summary judgment dismissing the first amended complaint and, in appeal No. 2, sheappeals from an order denying her motion for leave to reargue and renew her oppositionto defendants' motion. With respect to appeal No. 2, we dismiss the appeal from the ordertherein to the extent that it denied leave to reargue (see Empire Ins. Co. v FoodCity, 167 AD2d 983, 984 [1990]), and we otherwise affirm the order in each appeal.
"It is well settled that a driver who has the right-of-way is entitled to anticipate thatdrivers of other vehicles will obey the traffic laws requiring them to yield" (Malbory v David Chevrolet BuickPontiac, Inc., 108 AD3d 1109, 1110 [2013]; see Vehicle and TrafficLaw § 1142 [a]). Nevertheless, "a driver cannot blindly and wantonly enter anintersection . . . but, rather, is bound to use such care to avoid [a] collisionas an ordinarily prudent [motorist] would have used under [*2]the circumstances" (Strasburg v Campbell, 28 AD3d 1131, 1132 [2006][internal quotation marks omitted]).
Here, we conclude with respect to the order in appeal No. 1 that defendants met theirinitial burden of establishing that defendant was operating his vehicle " 'in a lawful andprudent manner and that there was nothing [he] could have done to avoid the collision' "(Daniels v Rumsey, 111AD3d 1408, 1410 [2013]; see Ithier v Harnden, 13 AD3d 1204, 1205 [2004]).Defendant testified that he saw plaintiff's vehicle at the stop sign, braked as soon as heentered the intersection, and turned to the left "microseconds" after he braked. Despitedefendant's efforts to avoid the accident, his truck struck the rear of plaintiff's vehicle onthe passenger's 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 [1980]).Contrary to plaintiff's contention, "the fact that [defendant] may have been driving at aspeed in excess of five miles per hour over the posted speed limit . . . isinconsequential inasmuch as there is no indication that [defendant] could have avoidedthe 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 properlydenied that part of plaintiff's motion for leave to renew. It is well settled that a motion forleave to renew must be "based upon new facts not offered on the prior motion that wouldchange the prior determination," and "shall contain reasonable justification for the failureto present such facts on the prior motion" (CPLR 2221 [e] [2], [3]; see Blazynski v A. Gareleck &Sons, Inc., 48 AD3d 1168, 1170 [2008], lv denied 11 NY3d 825[2008]). Here, the only reason proffered by plaintiff for failing to submit her expert'saffidavit in opposition to defendants' motion is that she believed that she had raised anissue of fact without it and that the court would therefore deny defendants' motion. Thatis not a reasonable justification for the failure to present the affidavit on the initialmotion. As we have previously stated, a motion for leave to renew "is not a secondchance freely given to parties who have not exercised due diligence in making their firstfactual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831 [1998][internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d527, 528 [2012]; Tibbits vVerizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]).
All concur except Whalen, J., who dissents and votes to reverse in accordance withthe following memorandum.
Whalen, J. (dissenting). I respectfully dissent in appeal No. 1 because this case doesnot involve a truly unavoidable accident for which the grant of summary judgment wouldbe appropriate (see generallyDeBrine v VanHarken, 83 AD3d 1437, 1438 [2011]). I would therefore reversethe order in appeal No. 1, deny defendants' motion for summary judgment, and reinstatethe 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, 1403 [2008]), and " '[i]t cannot be said as amatter of law that [one] driver's conduct was the sole proximate cause of the accidentsimply because his approach into the intersection was regulated by a stop sign whereasno traffic control devices regulated [the other driver's] approach' " (Nevarez v S.R.M. Mgt. Corp.,58 AD3d 295, 297 [2008]).
Supreme Court relied upon Rogers v Edelman (79 AD3d 1803, 1804 [2010]) andGalvin v Zacholl (302 AD2d 965, 966-967 [2003], lv denied 100 NY2d512 [2003]) in granting defendants' motion for summary judgment dismissing the firstamended complaint but here, in contrast, the actions of the driver of the vehicle in whichplaintiff was a passenger were not so sudden. Unlike someone preparing to make a leftturn across oncoming traffic in the absence of a traffic control device, or someonepulling 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 SUVin [*3]which plaintiff was a passenger accelerated fromthe stop sign and proceeded into the intersection.
This case is factually similar to Nevarez (58 AD3d at 296-298) and Cooley v Urban (1 AD3d900, 900-901 [2003]) in many important respects, and I see no reason why theoutcome should be any different. From the stop sign on East Centerville Road, there is aneight-foot shoulder followed by the single east and westbound lanes of Route 243 andthen 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 tractortrailer, and plaintiff's husband looked both ways before gradually accelerating across theintersection. Defendant first saw the SUV when he was between one eighth to onequarter of a mile from the intersection. His tractor trailer's "black box report" indicatesthat defendant's speed was likely 64 miles per hour at that time while the speed limit onthe road on which he was traveling was 55 miles per hour. Defendant watched the SUVthe whole way and, when he was "a couple hundred feet" away, saw the SUV acceleratefrom 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." Defendant turned to the left when he realized thata collision was unavoidable; the SUV had fully entered his lane and it appeared asthough the SUV "was going to keep going and not spot [him] at all." Defendant did notsound his horn, and his right front fender collided with the right rear quarter panel of theSUV. The black box recorded that defendant applied his brakes one second before thecollision; he was traveling at a speed of 58 miles per hour.
Because defendant observed that the SUV entered the intersection without appearingto notice defendant from a distance of 200 feet, and considering that the black box reportcontradicts defendant's testimony that he first applied his brakes when he was 200 feetaway, I conclude that there is a question of fact whether defendant used the requisitereasonable care when proceeding into the intersection and in attempting to avoid thecollision (see Dorr vFarnham, 57 AD3d 1404, 1405-1406 [2008]; Cooley, 1 AD3d at900-901; King v Washburn, 273 AD2d 725, 726 [2000]).
A difference in a matter of seconds, or perhaps less, could have prevented thisaccident. The SUV had almost made it across the intersection and was in the westboundlane when the collision occurred. Defendant saw the SUV accelerate from the stop signdespite his approach, 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. Haddefendant been traveling at the speed limit, braked and/or veered sooner, the collisionmight have been completely avoided. Considering the SUV's location at the time ofimpact and standard acceleration, and defendant's understanding that the SUV wasoblivious to his approach, if defendant had sounded his horn upon noticing the SUVaccelerate the accident might have been avoided. Defendant testified that he could onlyapply his brakes in anticipation of the SUV possibly spotting him, but a trier of factmight 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 enterthe "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 [2003]). Present—Centra, J.P., Peradotto, Lindley, Sconiersand Whalen, JJ.