| Rodriguez v Gutierrez |
| 2016 NY Slip Op 02979 [138 AD3d 964] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| Daniel Gomez Rodriguez, an Infant, by His Mother andNatural Guardian, Anna Rodriguez, et al., Plaintiffs, v Emir D. Gutierrez et al.,Appellants, et al., Defendants. (Action No. 1.) Joseph Ayala, an Infant, by His Motherand Natural Guardian, Jenny Ayala, et al., Respondents, v Mila Transportation, Inc., etal., Appellants, et al., Defendants. (Action No. 2.) Marcial Orta et al., Respondents, vCity of New York, Respondent, and Mila Transportation, Inc., et al., Appellants. (ActionNo. 3.) |
Baker, McEvoy, Morrissey & Moskovits, P.C. (Majorie E. Bornes, Brooklyn,NY, of counsel), for appellants.
Raphaelson & Levine Law Firm, P.C., New York, NY (Jason S. Krakower ofcounsel), for respondents in action No. 2.
Kaplan & Kaplan, Brooklyn, NY (Cary H. Kaplan of counsel), forplaintiffs-respondents in action No. 3.
Zachary W. Carter, Corporation Counsel, New York, NY (Francis F. Caputo andSusan P. Greenberg of counsel), for defendant-respondent in action No. 3.
In three related actions to recover damages for personal injuries, etc., which werejoined for trial, Emir D. Gutierrez, Mila Transportation, Inc., and Astra Town Corp.appeal from an order of the Supreme Court, Kings County (Landicino, J.), datedNovember 13, 2013. The order granted the respective motions of Joseph Ayala and JennyAyala, the plaintiffs in action No. 2, Marcial Orta and Xiomara Pica, the plaintiffs inaction No. 3, and the City of New York, a defendant in action No. 3, for leave to rearguetheir respective oppositions to the branches of the prior motions of Emir D. Gutierrez andMila Transportation, Inc., defendants in action Nos. 2 and 3, which were for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against themin those actions, which had been granted in an order of that court dated April 4, 2013,and, upon reargument, vacated those portions of the order dated April 4, 2013, andthereupon denied those branches of the motions. The order also, upon, in effect,searching the record, vacated so much of the order dated April 4, 2013, as granted themotion of Emir D. Gutierrez, Mila Transportation, Inc., and Astra Town Corp.,defendants in action No. 1, for [*2]summary judgmentdismissing the complaint and all cross claims insofar as asserted against them in thataction, and thereupon denied that motion. The order also, upon, in effect, searching therecord, vacated so much of the order dated April 4, 2013, as granted that branch of themotion of Emir D. Gutierrez and Mila Transportation, Inc., defendants in action No. 2,which was for summary judgment dismissing the cross claims asserted against them inthat action, and thereupon denied that branch of the motion.
Ordered the order dated November 13, 2013, is reversed, on the law, with one bill ofcosts payable by the respondents appearing separately and filing separate briefs, and therespective motions of Marcial Orta and Xiomara Pica, Joseph Ayala and Jenny Ayala,and the City of New York for leave to reargue are denied.
This appeal arises out of a two-car head-on collision that occurred on CypressAvenue in Queens. The accident happened on a curved portion of the roadway that hadone lane of traffic going in one direction and another lane of traffic going in the oppositedirection. The two lanes of opposing traffic were separated by a double yellow line. Oneof the vehicles involved in the accident was owned by Xiomara Pica, operated by MarcialA. Orta, and carried one passenger, Joseph Ayala (hereinafter the Orta vehicle). Theother vehicle involved in the accident was owned by Mila Transportation, Inc., and AstraTown Corp., operated by Emir D. Gutierrez, and carried two passengers at the time of theaccident, Daniel Gomez Rodriguez and Raymond Gomez Rodriguez (hereinafter theMila vehicle).
The passengers in both vehicles, the Rodriguezes and Ayala, among others,commenced action No. 1 against, among others, Emir D. Gutierrez, Mila Transportation,Inc., Astra Town Corp. (hereinafter collectively the Mila defendants), Orta, and Pica.Ayala and his mother (hereinafter the Ayala plaintiffs) commenced action No. 2 againstMila Transportation, Inc., Gutierrez, Orta, and Pica. Orta and Pica commenced actionNo. 3 against Mila Transportation, Inc., Gutierrez, and the City of New York. The threeactions were joined for trial. In action No. 1, the Mila defendants moved, and in actionNos. 2 and 3, Gutierrez and Mila Transportation, Inc., moved, for summary judgmentdismissing the complaints and all cross claims insofar as asserted against them. Theyargued that Orta was negligent in driving over the double yellow line into the lane oftravel of the Mila vehicle and that Orta's negligence was the sole proximate cause of theaccident. The motion in action No. 1 was opposed by, among others, Orta and Pica. Themotion in action No. 2 was opposed by Orta and Pica, and the Ayala plaintiffs. Themotion in action No. 3 was opposed by Orta and Pica, and the City. In their respectiveopposition papers, Orta and Pica, the Ayala plaintiffs, and the City (hereinaftercollectively the respondents), argued, inter alia, that the motions were premature and, inany event, triable issues of fact existed as to which car crossed over the double yellowline.
In an order dated April 4, 2013 (hereinafter the April order), the Supreme Courtgranted the subject motions for summary judgment in all three actions. The courtconcluded that the movants met their prima facie burden by demonstrating that the Ortavehicle crossed over the double yellow line, which caused the collision in the laneoccupied by the Mila vehicle. The court determined that the respondents failed to raise atriable issue of fact in opposition.
In action No. 2, the Ayala plaintiffs moved, and in action No. 3, Orta and Picamoved, and the City separately moved, for leave to reargue their respective oppositionsto the summary judgment motions. In the order appealed from, the Supreme Courtgranted the motions for leave to reargue and, upon reargument, vacated so much of theApril order as granted that branch of the motion of Gutierrez and Mila Transportation,Inc., which was for summary judgment dismissing the complaint in action No. 2 insofaras asserted against them, and thereupon denied that branch of the motion, and vacated somuch of the April order as granted the motion of Gutierrez and Mila Transportation, Inc.,for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them in action No. 3, and thereupon denied that motion. The court also, upon, ineffect, searching the record, vacated so much of the April order as granted the Miladefendants' motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them in action No. 1, and thereupon denied that motion.Additionally, the court, [*3]upon, in effect, searching therecord, vacated so much of the April order as granted that branch of the motion ofGutierrez and Mila Transportation, Inc., which was for summary judgment dismissing allcross claims asserted against them in action No. 2, and thereupon denied that branch ofthe motion. The court determined that it had previously overlooked facts that raised atriable issue of fact as to whether the Orta vehicle stayed in its lane and did not cross overthe double yellow line. The Mila defendants appeal.
As an initial matter, contrary to the contentions of Orta and Pica, the Miladefendants' notice of appeal sufficiently describes the order sought to be reviewed(see CPLR 5515 [1]).
Turning to the merits, the Supreme Court should have denied the respondents'respective motions for leave to reargue. A motion for leave to reargue "shall be basedupon matters of fact or law allegedly overlooked or misapprehended by the court indetermining the prior motion, but shall not include any matters of fact not offered on theprior motion" (CPLR 2221 [d] [2]; see Ahmed v Pannone, 116 AD3d 802, 805 [2014]; Matter of Anthony J. Carter, DDS,P.C. v Carter, 81 AD3d 819, 820 [2011]). "While the determination to grantleave to reargue a motion lies within the sound discretion of the court, a motion for leaveto reargue is not designed to provide an unsuccessful party with successive opportunitiesto reargue issues previously decided, or to present arguments different from thoseoriginally presented" (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3dat 820 [citations and internal quotation marks omitted]).
Here, the Supreme Court did not overlook or misapprehend the facts, or misapplyany controlling law, when it originally determined, in the April order, that the Miladefendants were entitled to summary judgment in action No. 1, and that Gutierrez andMila Transportation, Inc., were entitled to summary judgment in action Nos. 2 and 3. Theevidence submitted in support of the motions included transcripts of the depositiontestimony of Gutierrez, the driver of the Mila vehicle, and Daniel Gomez Rodriguez, apassenger in the Mila vehicle. Gutierrez and Daniel Gomez Rodriguez both testified thatthey saw the Orta vehicle cross over the double yellow line and crash into the Milavehicle within the Mila vehicle's lane of travel. They testified that the accident happenedwithout warning and within seconds of when they observed the Orta vehicle within thecurve of the road.
This testimony was sufficient to establish, prima facie, that Orta's negligence was thesole proximate cause of the accident. "Crossing a double yellow line into the opposinglane of traffic, in violation of Vehicle and Traffic Law § 1126 (a),constitutes negligence as a matter of law, unless justified by an emergency situation notof the driver's own making" (Foster v Sanchez, 17 AD3d 312, 313 [2005]; see Marsicano v Dealer Stor.Corp., 8 AD3d 451 [2004]; Gadon v Oliva, 294 AD2d 397 [2002]). "Adriver is not required to anticipate that a vehicle traveling in the opposite direction willcross over into oncoming traffic" (Lee v Ratz, 19 AD3d 552, 552 [2005] [internal quotationmarks omitted]; see Dormena v Wallace, 282 AD2d 425, 427 [2001]). "Indeed,such a scenario presents an emergency situation, and the actions of the driver presentedwith [such a] situation must be judged in that context" (Dormena v Wallace, 282AD2d at 427; see Lee v Ratz, 19 AD3d at 552-553).
In opposition, the respondents failed to raise a triable issue of fact. The respondentsrelied upon the deposition testimony of Orta and the other passengers in the vehicles.Orta, Ayala, and Raymond Gomez Rodriguez could not remember the accident. Ortatestified that the last thing he remembered was "approaching the turn" in the roadway.Although he testified that he was in his lane at that time, he could not recall his travelthrough the curve in the roadway or the collision itself, which happened within the curveor at the "peak of the turn." Contrary to the respondents' contention, it is speculative toconclude from Orta's testimony that he remained in his lane throughout the curve in theroad and that, instead, the Mila vehicle crossed over the double yellow line.
Since the Supreme Court did not overlook any facts or law and came to this correctconclusion in the April order, it should have denied the respondents' respective motionsfor leave to reargue. Moreover, the court should not have, upon, in effect, searching therecord, vacated so much of the April order as granted the Mila defendants' motion forsummary judgment dismissing [*4]the complaint and allcross claims asserted against them in action No. 1, and thereupon denied that motion.The court also should not have, upon, in effect, searching the record, vacated so much ofthe April order as granted that branch of the motion of Emir D. Gutierrez and MilaTransportation, Inc., which was for summary judgment dismissing the cross claimsasserted against them in action No. 2, and thereupon denied that branch of themotion.
As an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ.of City of N.Y., 60 NY2d 539, 544-547 [1983]), the respondents argue that thesummary judgment motions should have been denied as premature (see CPLR3212 [f]). To defeat a motion for summary judgment based on outstanding discovery, itis incumbent upon the opposing party to provide an evidentiary basis to suggest thatdiscovery might lead to relevant evidence or that the facts essential to justify oppositionto the motion were in the exclusive knowledge and control of the moving party (see Suero-Sosa v Cardona, 112AD3d 706, 708 [2013]; Cajas-Romero v Ward, 106 AD3d 850 [2013]). The mere"hope or speculation that evidence sufficient to defeat a motion for summary judgmentmay be uncovered during the discovery process is an insufficient basis for denying themotion" (Suero-Sosa v Cardona, 112 AD3d at 708 [internal quotation marksomitted]). Here, the respondents failed to demonstrate how further discovery beyond theexisting deposition testimony may reveal or lead to additional relevant evidence. Hall,J.P., Austin, Sgroi and LaSalle, JJ., concur.