Wallace v. Barody

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 518459
________________________________
SALLY WALLACE, as
Administrator of the
Estate of LAWRENCE
MILLINGTON JR., Deceased,
Appellant,
v MEMORANDUM AND ORDER
PATRICIA BARODY,
Respondent.
________________________________
Calendar Date: November 12, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
__________
Finkelstein & Partners, LLP, Newburgh (James W.
Shuttleworth III of counsel), for appellant.
Pemberton & Briggs, Schenectady (Paul Briggs of counsel),
for respondent.
__________
Garry, J.
Appeal from an order of the Supreme Court (Ferradino, J.),
entered November 12, 2013 in Saratoga County, which granted
defendant's motion for summary judgment dismissing the complaint.
Defendant was driving through an intersection on Upper Glen
Street in the Town of Queensbury, Saratoga County when her
vehicle struck and killed a pedestrian (hereinafter decedent),
who was crossing against the light in a crosswalk. Plaintiff
commenced this negligence action on decedent's behalf. Following
joinder of issue and discovery, defendant moved for summary
judgment dismissing the complaint. Supreme Court granted the
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motion, and plaintiff appeals.
Defendant demonstrated her prima facie entitlement to
summary judgment by providing evidence that decedent "darted" so
suddenly into the path of defendant's vehicle that she was unable
to avoid the collision (St. Andrew v O'Brien, 45 AD3d 1024, 1027-
1028 [2007], lv dismissed and denied 10 NY3d 929 [2008] [internal
quotation marks and citations omitted]; see Green v Hosley, 117
AD3d 1437, 1437-1438 [2014]; Sheppeard v Murci, 306 AD2d 268,
268-269 [2003]). Defendant's affidavit and deposition testimony
and the affidavits of several witnesses, taken together,
establish that, in the moments immediately before the accident,
defendant was driving north in the outside lane of the two
northbound lanes. A large cargo van was traveling beside and
slightly ahead of her in the inside northbound lane. The two
vehicles entered the intersection with a green light in their
favor and passed most of the way through it. The van stopped
abruptly on the north side of the intersection, just before
reaching the pedestrian crosswalk, to avoid colliding with
decedent. The van driver stated that decedent was walking
rapidly through the crosswalk from the van driver's left and –
although he was crossing against a red light – was gazing
straight ahead without looking left or right for oncoming
traffic. The van driver checked his passenger side mirror and
saw defendant's vehicle approaching on his right side and
slightly behind his van. Decedent passed in front of his van
and, without looking to his right to check for traffic, stepped
directly into the path of defendant's vehicle. The van driver
opined that it would have been impossible for defendant to see
decedent before he entered her lane due to the position of the
van and decedent's location as he crossed in front of it.
Defendant testified that she had seen the van traveling
beside her before the accident. She did not see decedent until a
person's face appeared on her windshield, at which point she
immediately braked to a stop. She realized at the moment of
impact that the van beside her had stopped. Her vehicle
sustained damage to the driver's side mirror and the windshield
on that side. The driver of a vehicle directly behind defendant
testified by affidavit that he saw the van brake abruptly to a
stop, after which decedent stepped from in front of the van into
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defendant's lane, moving so quickly that defendant did not have
time to avoid striking him. Another witness saw decedent pass in
front of the van and confirmed that he did so without stopping,
slowing down or hesitating. These consistent accounts were
sufficient to establish defendant's prima facie entitlement to
summary judgment, shifting the burden to plaintiff to establish
an issue of fact as to whether defendant was operating her
vehicle in a negligent manner (see Warley v Grampp, 103 AD3d 997,
998 [2013]).
As plaintiff argues, defendant had a duty to see what was
there to be seen through the proper use of her senses (see
Ranaudo v Key, 83 AD3d 1315, 1316 [2011]; National Interstate v
A.J. Murphy Co., Inc., 9 AD3d 714, 715-716 [2004]). However,
plaintiff presented no evidence challenging defendant's showing
that defendant could not have seen decedent before he stepped
into the path of her vehicle. Plaintiff likewise offered no
evidence establishing an issue of fact as to whether defendant
violated the statutory duty to operate her vehicle with "due care
to avoid colliding with any . . . pedestrian" (Vehicle and
Traffic Law § 1146 [a]). Defendant testified that she was
traveling at about 30 miles per hour (hereinafter mph) as she
passed through the intersection, where the speed limit was 40
mph. The driver behind her estimated that defendant's speed was
15 mph, and no witness claimed that she had been exceeding the
speed limit. Contrary to plaintiff's claims, the statements of
two witnesses that defendant was driving at "full speed" and at
"the posted speed limit" and did not slow down as she passed
through the intersection did not raise issues of fact as to
whether she was speeding or otherwise failing to exercise due
care. "[A] driver entering an intersection with a green light is
not normally required to reduce his or her lawful speed" (Boston
v Dunham, 274 AD2d 708, 710 [2000]), and nothing in the parties'
submissions suggested that defendant's speed was excessive or
that she otherwise acted "blindly and wantonly" in entering the
intersection (Greco v Boyce, 262 AD2d 734, 735 [1999]).
Contrary to plaintiff's contention, defendant's failure to
give warning by sounding her horn does not establish that she
violated the statutory duty to do so "when necessary," as the
uncontradicted evidence establishes that defendant could not see
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decedent and had no time to give warning before the impact
(Vehicle and Traffic Law § 1146 [a]; see McGraw v Ranieri, 202
AD2d 725, 728 [1994]; see also Sauter v Calabretta, 90 AD3d 1702,
1703 [2011]). Finally, the facts do not support plaintiff's
contention that defendant improperly passed the stopped van at a
pedestrian crosswalk in violation of Vehicle and Traffic Law
§ 1151 (c),1 and, even if they did, the statute does not apply to
intersections regulated by traffic signals (see Rudolf v Shayne,
Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Rudolf v
Kahn, 4 AD3d 408, 409 [2004]). As plaintiff failed to establish
the existence of any material issue of fact as to whether
defendant was driving negligently, Supreme Court properly granted
summary judgment to defendant (see Johnson v Lovett, 285 AD2d
627, 627 [2001]; Carrasco v Monteforte, 266 AD2d 330, 331
[1999]).
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
Contrary to plaintiff's repeated assertions, defendant
did not testify that she saw the stopped van before entering the
intersection.