| O'Brien v Couch |
| 2015 NY Slip Op 00273 [124 AD3d 975] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| Janet O'Brien, Appellant, v Jessica Couch,Respondent. |
The Baynes Law Firm, PLLC, Ravena (Brendan F. Baynes of counsel), forappellant.
Hurwitz & Fine, PC, Buffalo (Cassandra A. Kazukenus of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Chauvin, J.), entered July 3,2013 in Saratoga County, which granted defendant's motion for summary judgmentdismissing the complaint.
In August 2010, plaintiff was injured when, while attempting to proceed through anintersection by making a left turn out of a service station parking lot, her vehicle wasstruck broadside by an oncoming vehicle driven by defendant. Thereafter, plaintiffcommenced this action alleging that the collision resulted from defendant's negligence intraveling at an excessive speed, failing to slow down when approaching the intersection,and failing to remain alert to her surroundings. Following discovery, defendant movedfor summary judgment dismissing the complaint. Supreme Court granted defendant'smotion, and plaintiff appeals.
It is uncontested that plaintiff's portion of the intersection was controlled by ablinking red light, and that she was therefore required to yield the right-of-way tooncoming vehicles that were "approaching so closely . . . as to constitute animmediate hazard" (Vehicle and Traffic Law § 1142 [a]; seeVehicle and Traffic Law § 1113 [a]). In support of her motion, defendantsubmitted her own deposition testimony, the affidavit of a nonparty eyewitness, and theaffidavit of a licensed engineer. In her deposition, defendant testified that she had beentraveling between 30 and 40 miles per hour (hereinafter mph) and was proceedingthrough the intersection under a green light when plaintiff pulled out of the servicestation parking lot into her path approximately three car lengths ahead of her. Defendantattempted to avoid the collision by swerving and slamming on her brakes but wasunsuccessful. The nonparty eyewitness, who had been traveling behind defendant, statedthat the speed limit on the subject road is 40 mph, that he believed [*2]defendant was traveling at approximately 40 mph, whichwas the same speed that he had been traveling, that plaintiff had pulled out of the gasstation and into the intersection in front of defendant, and that defendant had a greenlight. Defendant's expert, a licensed engineer, opined in an affidavit that defendant hadbeen traveling below the posted speed limit prior to the collision, was alert and attentivein her driving, and did not cause the collision. His accompanying report stated thatdefendant was traveling at about 39 mph when she began braking; this determination wasbased upon crash data retrieved from defendant's vehicle and skid mark measurements.Based upon these submissions, Supreme Court properly concluded that defendant hadmet her prima facie burden of entitlement to summary judgment and, thus, the burdenshifted to plaintiff to submit evidence in admissible form showing the existence of anymaterial issue of fact (seeGroboski v Godfroy, 74 AD3d 1524, 1525 [2010]).
In opposition to defendant's motion, plaintiff submitted the affidavit of a certifiedaccident reconstructionist and former police officer. Using the same data as defendant'sexpert, plaintiff's expert concluded that, at the time defendant began braking, she wastraveling at a faster speed of 49.95 mph, and he opined that had defendant not beenexceeding the speed limit, plaintiff would have had sufficient time to safely cleardefendant's lane of travel and complete her turn. Supreme Court rejected this expert'sfindings, taking issue with a perceived contradiction between the expert's calculation ofdefendant's speed prior to braking and an earlier report prepared by the expert that haddetermined that defendant had been traveling at about 35 mph at the point of impact.Contrary to the court's view of this evidence, the two speed measurements offered byplaintiff's expert are not inconsistent, and his findings based thereon are neither undulyconclusory nor speculative. It is instead inherently logical that defendant's speed wouldhave decreased between the point in time when defendant spotted plaintiff's vehicle inthe intersection and began to brake, and the subsequent point of impact. Plaintiff's experthad set forth both his qualifications in accident reconstruction and the scientific andfactual basis for his opinions. The two experts utilized the same data and, while theyarrived at different conclusions with respect to defendant's speed, "a disagreementbetween . . . experts merely creates a question of credibility to be resolvedby the finder of fact" (Stocklas vAuto Solutions of Glenville, Inc., 9 AD3d 622, 624 [2004], lv dismissed anddenied 4 NY3d 738 [2004] [internal quotation marks and citation omitted]).
Upon a defendant's motion, the evidence must be viewed in the light most favorableto the plaintiff (see Warley vGrampp, 103 AD3d 997, 998 [2013]). It is well established that "there may bemore than one proximate cause of an accident" (Ayotte v Gervasio, 186 AD2d963, 964 [1992], affd 81 NY2d 1062 [1993]). Upon review, we find thatplaintiff's evidence gives rise to material issues of fact as to whether defendant's speedwas excessive and, if so, whether her speed was a proximate cause of the collision(see King v Washburn, 273 AD2d 725, 726 [2000]; Anderson v Miller,263 AD2d 643, 643-644 [1999]; see also Antaki v Mateo, 100 AD3d 579, 580 [2012]; Dorr v Farnham, 57 AD3d1404, 1405-1406 [2008]; Rotondi v Rao, 49 AD3d 520, 521 [2008]; compareVogel v Gilbo, 276 AD2d 977, 979-980 [2000]). Accordingly, the order is reversedand the complaint reinstated.
Peters, P.J., Lahtinen, Rose and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, with costs, and motion denied.