| Castiglione v Kruse |
| 2015 NY Slip Op 06306 [130 AD3d 957] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Marie Castiglione et al., Appellants, v RobertKruse et al., Respondents. |
Michael S. Langella, P.C., Hauppauge, N.Y., and Justin B. Perri PLLC, RockvilleCentre, N.Y., for appellants (one brief filed).
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E.Ferrucci of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Mayer, J.), dated July 11, 2014, as denied their motion for summary judgment on theissue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the plaintiffs' motion for summary judgment on the issue of liability is granted.
On October 19, 2011, at approximately 6:40 a.m., Marie Castiglione (hereinafter theinjured plaintiff), was walking southbound across Montauk Highway near its intersectionwith Keith Lane in West Islip, when she was struck by the defendants' vehicle, whichwas making a left turn from Keith Lane to proceed eastbound on Montauk Highway. Theinjured plaintiff, and her husband suing derivatively, commenced this action against thedefendants to recover damages for personal injuries and loss of consortium, respectively.The plaintiffs moved for summary judgment on the issue of liability, and the defendantscross-moved for summary judgment on the issue of liability. The Supreme Court deniedthe motion and cross motion.
The plaintiffs established their prima facie entitlement to judgment as a matter of lawon the issue of liability (see Vehicle and Traffic Law § 1152 [a]; Garcia v Lenox Hill Florist III,Inc., 120 AD3d 1296 [2014]; Brown v Mackiewicz, 120 AD3d 1172 [2014]; Hamilton v King Tung Kong,93 AD3d 821 [2012]; seealso Moreira v M.K. Travel & Transp., Inc., 106 AD3d 965 [2013]). Thedeposition testimony of the injured plaintiff and a nonparty witness established that priorto entering the roadway, the injured plaintiff waited for the traffic light controlling theeast-west traffic on Montauk Highway to turn red, then looked to her left and right, and,seeing no cars, started to walk southbound across Montauk Highway. The testimonyfurther established that the injured plaintiff traversed the westbound left-turn lane, andwhile in the eastbound lane of Montauk Highway, having almost completed crossing,was struck by the defendants' vehicle, which had turned left from Keith Lane to proceedeast on Montauk Highway. Significantly, this testimony established that, prior to theimpact, Karen Kruse (hereinafter the defendant driver), started her approach to the pointof impact from behind and to the right of the injured plaintiff, that is, from behind theinjured plaintiff's right shoulder and out of her view. The defendant driver conceded inher deposition testimony that she did not see the injured [*2]plaintiff prior to impact, despite the fact, established by herown testimony, that the injured plaintiff was generally in front of her prior to the impact.Under these circumstances, the plaintiffs established that the defendant driver wasnegligent and that the injured plaintiff was free from comparative fault.
In opposition to the plaintiffs' prima facie showing, the defendants failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).The defendants' unsupported speculation that the injured plaintiff was comparatively atfault was insufficient to raise a triable issue of fact (see Garcia v Lenox Hill FloristIII, Inc., 120 AD3d at 1297; Hamilton v King Tung Kong, 93 AD3d 821 [2012]; Sulaiman v Thomas, 54 AD3d751, 752 [2008]).
The cases relied upon by our dissenting colleague are each factually distinguishablefrom the instant case, in various respects. The three cases share one importantdistinguishing fact: the vehicles in all three cases were coming from a direction generallyin front of the injured plaintiff before the impact with the injured plaintiff occurred.Here, the defendants' vehicle was coming from a direction which was largely behind theinjured plaintiff, and to her right, prior to the impact. This important fact, in addition toother facts present in this case, demonstrated that the injured plaintiff was free fromcomparative fault in the happening of the accident.
In Yi Min Feng v Jin WonOh (71 AD3d 879 [2010]), the plaintiff pedestrian was only one third of the wayinto the intersection when she was struck on her left side by the defendant's vehicle,which was making a turn. The plaintiff did not look to her left either before or while shewas crossing the street and she was struck by a vehicle coming from in front of her. Inthe instant case, the injured plaintiff looked both ways before crossing, traversed almosttwo lanes of traffic, and had almost completed crossing when she was stuck by thedefendants' vehicle, which started its approach from behind her.
In Lopez v Garcia (67AD3d 558 [2009]), the Appellate Division, First Department, found that there weretriable issues of fact as to the plaintiff's comparative fault because (1) the plaintiff'saffidavit indicated that she did not see the defendants' vehicle prior to being struck, (2)the police accident report indicated that a witness observed that the plaintiff never lookedbefore walking into the roadway, and (3) the defendant's affidavit stated that after hemade a left turn, he saw the plaintiff run into the front passenger bumper of his vehicle.Lopez is distinguishable from the instant case because the plaintiff inLopez failed to see a vehicle which was coming from in front of her, while here,the injured plaintiff did not see the defendants' vehicle, which was coming from behindher. Additionally, the witness in Lopez indicated that the injured plaintiff neverlooked when walking into the roadway, whereas here, the witness indicated that theinjured plaintiff looked both ways before entering the roadway. Here, there is noevidence to contradict the injured plaintiff's proof that she looked both ways prior to entering the unmarked crosswalk. Moreover, in Lopez, the defendant actuallysaw the plaintiff run into his vehicle, unlike here, where the defendant never saw theinjured plaintiff prior to impact, and indeed, did not know that she had struck a personuntil after the impact.
In Thoma v Ronai (189 AD2d 635 [1993], affd 82 NY2d 736[1993]), the plaintiff was crossing south on East 79th Street in Manhattan, and washalfway through the intersection when she was struck on her left side by the defendant'svan, which was turning left onto 79th Street from First Avenue. In her affidavit, theplaintiff averred that she waited at the intersection for the light to change, and when thelight changed and the pedestrian signal flashed "walk," she began to walk south in thecrosswalk. When she reached the center of the crosswalk she was struck on her left side,but did not see what struck her. The defendant's van came from in front of the plaintiff,not behind her. The Appellate Division, First Department, affirmed an order denying theplaintiff's motion for summary judgment, finding that there was an issue of fact as towhether the plaintiff was comparatively at fault. The Court stated that "the law is clearthat plaintiff had a duty to use her eyes to protect herself from danger, and that her failureto look would constitute negligence" (189 AD2d at 637).
Here, the evidence demonstrated that once the traffic light changed in favor of the[*3]injured plaintiff, she looked in both directions beforecrossing, unlike the plaintiff in Thoma, who failed to look at all. Although theinjured plaintiff here stated that while she was crossing she was looking straight ahead,she had almost completed crossing when she was struck by the defendants' vehicle,which originated its approach from behind her while making a left turn. Although ourdissenting colleague contends that we have misapprehended the facts and that thedefendant's vehicle had completed its left turn and was traveling straight to reach theunmarked crosswalk where the injured plaintiff was walking, the dissent's version of thefacts does not comport with the defendant driver's sworn statement on the day of theincident in which she stated that she "started to make [her] left turn and felt an impact,"and the defendant driver's deposition testimony that when the impact with the injuredplaintiff occurred, her vehicle had not yet completed the turn. The dissent's determinationthat the defendant driver had already completed the turn at the point of impact also doesnot comport with the police accident report, which indicates that the injured plaintiff wasstruck by the driver side door of a vehicle at an angle approaching from behind and to theright of the injured plaintiff, or the affidavit of the nonparty witness who also indicatedthat the defendant driver's vehicle was making a left turn when it struck the injuredplaintiff. The dissent's contrary assumption that the turn made by the defendant driverwas a sharp left made perpendicular to the road into which she was turning is thereforenot supported by the record. Accordingly, the facts and circumstances of this case aredistinguishable from Thoma, and our holding here is not in contravention to thesubsequent decision of the Court of Appeals in that case, which held that the plaintiffmay have been negligent in failing to look to her left while crossing the intersection.
The defendants' remaining contention is raised for the first time on appeal and,therefore, is not properly before this Court (see Pineda v Elias, 125 AD3d 738, 739 [2015]).
Accordingly, the Supreme Court should have granted the plaintiffs' motion forsummary judgment on the issue of liability. Skelos, J.P., Duffy and LaSalle, JJ.,concur.
Dillon, J., dissents, and votes to affirm the order insofar as appealed from, with thefollowing memorandum: There are three reasons why I disagree with the majoritydetermination to reverse: (1) it misapprehends four separate factual aspects of the casethat raise issues of comparative negligence, (2) it fails to correctly apply controllingprecedent from the Court of Appeals as well as this Court, and (3) it effectively createsnew law that has no basis in decisional authority. Each reason is discussed in turn.
The majority's first misapprehension involves the direction of travel of thedefendants' vehicle. Photographs of the intersection that are in the record irrefutablydemonstrate that the intersection is more of a three-way intersection with Keith Lane,from which the defendant driver turned, being several yards to the west of the other threeentry points. The photographs, which are as much a part of the record as any party'sdeposition testimony, demonstrate that the defendant driver necessarily completed orvirtually completed her left turn from Keith Lane and traveled through the three-wayportion of the intersection in order to then reach the unmarked crosswalk where theinjured plaintiff was walking. Any suggestion that the defendants' vehicle was somehow"behind" the injured plaintiff at the time of the impact is a physical impossibility giventhe configuration of the photographed roadways. The accident could not thereforeinvolve a vehicle traveling from behind the injured plaintiff, as the majority implies, butwas necessarily more perpendicular to the injured plaintiff upon the car's approach fromher side. With the defendants' vehicle's headlights pointing toward the unmarkedcrosswalk as it approached essentially from the injured plaintiff's side, the injuredplaintiff must have been truly oblivious of her surroundings to have not seen the car atany time, as she admitted in her deposition testimony. Under these circumstances, a jurycould easily and rationally assess to the injured plaintiff a percentage of comparativenegligence, and this Court should not improperly usurp that fact-finding function.
The second fact misapprehended by the majority involves where the injured plaintiff[*4]was looking at relevant times. The majority notes thatthe injured plaintiff waited for the traffic light to be in her favor before leaving the curbto cross the highway. In doing so, however, the majority ignores the injured plaintiff'sadmission at her deposition that, as she crossed the lanes of travel, she failed to look toher sides and instead looked only ahead of her. The injured plaintiff's duty of care, evenif vested with a right-of-way under Vehicle and Traffic Law §§ 1152(a) and 110 (a), does not end when she leaves the curb but is, instead, a continuing one asshe traversed across the three-lane roadway (see Schmidt v Flickinger Co., 88AD2d 1068, 1069 [1982]; Counihan v Werbelovsky's Sons, 5 AD2d 80, 83[1957]). The Court of Appeals has held, under facts virtually identical to those here, thatthe award of summary judgment to a plaintiff in a pedestrian knockdown case is notappropriate where the plaintiff fails to look to the sides while in the process of crossingan intersection (see Thoma v Ronai, 82 NY2d 736 [1993]). This Court has alsoheld—under almost identical facts of a plaintiff crossing a highway as thedefendant vehicle made a left turn at the intersection—that summary judgmentwas not appropriate where, as here, the injured plaintiff did not look to her sides while inthe process of crossing (see YiMin Feng v Jin Won Oh, 71 AD3d 879 [2010]). Here, the defendants' vehicleapproached the injured plaintiff from her side.
The third fact misapprehended by the majority is the injured plaintiff's admission ather deposition that she never saw the defendants' oncoming vehicle before the accident,even though the vehicle approached her from the side with its headlights on. In Lopez v Garcia (67 AD3d558 [2009]), another case involving a pedestrian knockdown while the defendant'svehicle turned into an intersection, there were triable issues of fact as to comparativenegligence because the injured plaintiff stated in an affidavit that she did not see thedefendant's vehicle before contact with it. Here, the injured plaintiff failed to see whatwas there to be seen through the proper use of her senses (see Espiritu v Shuttle ExpressCoach, Inc., 115 AD3d 787 [2014]; Brandt v Zahner, 110 AD3d 752 [2013]; Colpan v Allied Cent. Ambulette,Inc., 97 AD3d 776, 777 [2012]; Topalis v Zwolski, 76 AD3d 524, 525 [2010]; Tapia v Royal Tours Serv.,Inc., 67 AD3d 894, 896 [2009]).
The fourth fact misapprehended by the majority concerns the uncontested evidencethat the injured plaintiff's point of impact with the defendants' vehicle was at the driverside door and side mirror. One can reasonably and logically infer fromthis testimony that the injured plaintiff walked into the side of the defendants' vehicleafter it had already entered and was traveling beyond the intersection on MontaukHighway's eastbound lane. Such an inference is supported by the photographedconfiguration of the accident scene, requiring vehicles making left turns from Keith Laneonto Montauk Highway to negotiate the turn in order to then proceed to the general areawhere the accident occurred. Where plaintiff pedestrians have had impacts with the sideof a passing vehicle, as here, many appellate decisions have upheld summary judgmentand trial verdicts in favor of the defendant motorists, not the pedestrians, based partiallyor entirely upon the location of the contact with the side of the cars (see Rogers v City of NewYork, 52 AD3d 589 [2008]; Carrasco v Monteforte, 266 AD2d 330[1999]; Moskowitz v Israel, 209 AD2d 676 [1994]; Fieldy v Weimer, 169AD2d 961 [1991]). The point of the injured plaintiff's contact alone, aside from any otherfacts or evidence, dictates the denial of summary judgment to the plaintiffs, and at leastraises a triable issue of fact for the jury as to her contributory fault.
Indeed, in awarding summary judgment on the issue of liability to a plaintiffpedestrian who struck the driver side of a moving vehicle, the majority fails to adhere toestablished New York jurisprudence. Clearly, the point of impact between the injuredplaintiff and the defendants' vehicle raises a triable issue of fact as to the injuredplaintiff's comparative fault in walking into the side of a passing vehicle while she,according to her deposition testimony, was singularly focused on what was straight aheadof her as she walked across a three-lane roadway, rather than being mindful of herbroader surroundings.
In addition to the significant facts overlooked or misunderstood by the majority, themajority has misapplied controlling case law such as Thoma, Yi MinFeng, and Lopez by making distinctions that those cases did not involvevehicles approaching pedestrians from the rear. The majority's position in this regard isfaulty for two reasons. First, the premise that the defendants' vehicle somehowapproached from behind her is refuted by the uncontested configuration of theintersection, regardless of its point of initial origin. Second, the majority misconstruesThoma, Yi [*5]Min Feng, andLopez, as those cases were not determined by the direction of the cars involvedbut by the plaintiffs' failures to be aware of their surroundings on traffickedroadways.
In addition to overlooking crucial facts and ignoring controlling precedent, themajority, in my view, creates new law that is untenable. In essence, the majority holdsthat as long as a pedestrian looks both ways and steps off a curb with the traffic light inhis or her favor, the pedestrian is relieved of any further duty of care while crossingmultiple lanes of traffic on a dark and rainy morning, without need to ever look again leftor right, and be oblivious to one's broader surroundings. That proposition is not now andnever has been the law (see Thoma v Ronai, 82 NY2d at 736; Yi Min Feng vJin Won Oh, 71 AD3d at 879; Lopez v Garcia, 67 AD3d 558 [2009]; Schmidt vFlickinger Co., 88 AD2d at 1069; Counihan v Werbelovsky's Sons, 5 AD2dat 83). The majority also makes new law that pedestrians need not concern themselveswith vehicles that make turns into intersections, so long as the vehicles initially originatefrom the rear of four potential entry points. In the area of pedestrian knockdown cases,the majority cannot reach the conclusion it reaches here without creating new law thatviolates clear and consistent appellate precedents that are to the contrary.
Accordingly, I respectfully dissent.