If You Tell Two Different Versions of How the Car Crash Happened, You Do Not Get The Case Against You Dismissed!

The Full Decision and Order of the Court:  

SUPREME COURT: STATE OF NEW YORK

IAS PART WESTCHESTER COUNTY

PRESENT: HON. WANDA B. BROWN, J.S.C.

—————————————————————x

EMILY ANTIOCHIUS,

Plaintiff,

-against-

GERALDO M. PERONE,

Defendant.

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GERALDO M. PERONE,

Third-Party Plaintiff,

-against-

SAMUEL ANTIOCHIUS,

Third- Party Defendant.

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The following electronically filed papers (NYSCEF Doc Nos. 28-54; 56; 58-75)

were read on: (1) the motion by the defendant/third-party plaintiff, Geraldo M..Perone, for an order, pursuant to CPLR 3212, granting summary judgment on the issue of liability and dismissing the complaint (sequence no. 1); and (2) the motion by the plaintiff, Emily Antiochius, for an order, pursuant to CPLR 3212, granting summary judgment on the issues of liability and serious injury (sequence no. 2).

Motion Sequence No.1

Notice of Motion-Statement of Facts-Affirmation-Exhibits (8)-Memo of Law-Prop. Order

Affirmation in Opposition (by plaintiff)

Affirmation in Opposition (by third-party defendant, Samuel Antiochius)-Exhibits (3)

Reply Memo of Law (2).

Motion Sequence No.2

Notice of Motion-Statement of Facts-Affirmation-Exhibits (12)

Aff. in Opp.-Exhibits (5)-Memo of Law-Resp./Counterstatement of Facts-Prop. Order

Reply Affirmation

Upon reading the foregoing papers, the motions are determined as follows:

The plaintiff, Emily Antiochius (Plaintiff), was a passenger in a motor vehicle operated by the third-party defendant, Samuel Antiochius (Antiochius), when it collided with a vehicle operated by the defendant, Geraldo M. Perone (Perone), at an intersection which was governed by a traffic light.  According to Plaintiff and Antiochius, the accident occurred when the two vehicles, which were traveling in opposite directions, collided when the vehicle operated by Antiochius attempted to make a left-hand turn at the intersection.

Plaintiff commenced this action with the filing of a summons and complaint.  Perone joined issue with the filing of an answer with affirmative defenses.  Contemporaneous with the filing of his answer, Perone commenced a third-party action against Antiochius for indemnification/contribution.  Antiochius joined issue with the filing of an answer to the third party complaint with affirmative defenses. 

Following the completion of discovery, Perone moves (no. 1) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint upon the grounds that he is not liable for the subject collision and resulting injuries.  Plaintiff and Antiochius oppose the motion and Plaintiff cross-moves (no. 2) for an order, pursuant to CPLR 3212, granting summary judgment on the issues of liability and serious injury.  Perone only opposes that branch of the cross-motion which seeks summary judgment on the issue of liability and otherwise concedes that Plaintiff has sustained a serious injury as a result of the collision.  The motions are consolidated for joint disposition and decided as follows.

In support of his motion, Perone proffers, among other things, the pleadings, excerpts from the deposition testimony of Antiochius and Plaintiff, and his deposition testimony.  Based thereon, Perone contends, among other things, that the competent evidence establishes that the subject collision occurred as a result of Antiochius’s failure to comply with Vehicle and Traffic Law (VTL) § 1141 when Antiochius, as the operator of a vehicle attempting a left-hand tum within an intersection, failed to yield the right of way to Perone, whose vehicle was approaching the intersection from the opposite direction and who was entitled to anticipate that Antiochius would yield the right of way.  As such, Perone submits that his motion should be granted.

In opposition and in support of her cross-motion, Plaintiff submits, among other things, the pleadings, a certified copy of the police accident report, deposition transcripts of the parties and the affirmed report of James B. Rigley, M.D., a radiologist.  Based thereon, Plaintiff asserts that Perone’s motion should be denied and her cross-motion should be granted in its entirety.  As to Perone’s motion, Plaintiff argues that denial is warranted inasmuch as the parties present differing versions of how the accident occurred.  More specifically, Plaintiff asserts that, contrary to the deposition testimony of herself and Antiochius, Perone testified that at the moment of collision, his vehicle was stopped (as opposed to moving and approaching the intersection), had not yet entered the intersection and that Antiochius’s vehicle, which was turning from North Broadway onto Maple Avenue (as opposed to attempting a left-hand tum onto South Broadway from Maple Avenue) turned directly into Perone’s vehicle.  Plaintiff submits that under Perone’s version of the events, there is no explanation of how the collision occurred.  Given the inconsistencies as to how the accident unfolded, Plaintiff argues that Perone’s motion should be denied.

As to her cross-motion, Plaintiff argues that the medical evidence she has tendered establishes, prima facie, that she has sustained a serious injury within the meaning of Insurance Law § 5102 (d).  Plaintiff also contends that as an innocent passenger, she is entitled to summary judgment on the issue of liability.  In opposition to Perone’s motion, Antiochius similarly contends, among other things, that the differing versions of how the accident unfolded raise triable issues of fact thereby warranting the denial of summary judgment in Perone’s favor.  In reply and in opposition to the cross-motion, Perone argues, among other things, that any discrepancies as to how the collision occurred do not warrant the denial of his motion for summary judgment because under either version of the accident (Antiochius and Plaintiff or Perone), Antiochius was exclusively at fault for the happening of the collision.  Perone contends that the discrepancies in the testimony do not raise a material fact on the issue of liability.  Accordingly, he submits that his motion should be granted.  More specifically, Perone asserts that if he was proceeding through the intersection as Antiochius testified and as the police accident report states, then Antiochius was negligent by violating VTL § 1141.  If, however, Perone was stationary at a stop light and had not entered the intersection when Antiochius’ s vehicle ran directly into his vehicle, then that version also establishes Antiochius’s negligence as a matter of law and further demonstrates that Perone was not at fault for the happening of the collision since he was stopped at a red light.  Perone otherwise concedes that Plaintiff has sustained a serious injury as a result of the subject collision.

In reply to her cross-motion, Plaintiff reasserts her position that as an innocent passenger, she is entitled to summary judgment on the issue of liability and the trier of fact should apportion liability as between Perone and Antiochius.

On a motion for summary judgment the court’s function is to determine whether triable issues of fact exist or whether judgment can be granted to a party on the proof submitted as a matter of law (see CPLR 3212 [b]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]).  In determining the motion, the court must view the evidence in a light most favorable to the nonmovant and is obliged to draw all reasonable inferences in the nonmovant’s favor (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]; Stukas v Streiter, 83 AD3d 18, 22 [2d Dept 2011]).  Such a motion may be granted only if the movant tenders sufficient evidence in admissible form demonstrating, prima facie, the absence of triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).  Failure to make a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).  However, if the prima facie burden is met, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form establishing the existence of material issues of fact requiring a trial (see Zuckerman, 49 NY2d at 562).

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v Lerner-Harrington, 124 AD3d 709, 709 [2d Dept 2015]).  “Pursuant to Vehicle and Traffic Law § 1141, the driver of a vehicle intending to tum to the left within an intersection shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.  A violation of this statute constitutes negligence per se” (DePass v Beneduci, 207 AD3d 620, 621 [2d Dept 2022] [internal quotation marks, brackets and citations omitted]).  “The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield” (Giwa v Bloom, 154 AD3d 921, 921 [2d Dept 2017] [internal quotation marks omitted]).  Moreover, a driver is negligent if he or she fails to see that which, through the proper use of his or her senses, should have been seen (see Allen v Echols, 88 AD3d 926, 927 [2d Dept 2011]).  “There can be more than one proximate cause of an accident and, generally, it is for the trier of fact to determine the issue of proximate cause.  However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Guido v Dagnese, 214 AD3d 715, 716 [2d Dept 2023] [internal quotation marks, citations and brackets omitted]).

By contrast, “[a] plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries.  If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” (Lindo v Katz, 205 AD3d 1016, 1016-1017 [2d Dept 2022] [internal quotation marks, citations and ellipses omitted]).  “A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability” (Guido, 214 AD3d at 717).

The court first addresses the motion by Perone.

Viewing the evidence in a light most favorable to the nonmovants including, the deposition testimony of Antiochius and Plaintiff, Perone established his prima facie entitlement to judgment as a matter of law.  Through the deposition testimony of Antiochius, Perone demonstrated, prima facie, that Perone had the right of way, that Antiochius failed to yield the right of way to Perone’s vehicle, and that Antiochius failed to see what was there to be seen (see Hyo Jin Yoon v Guang Chen, 127 AD3d 1023, 1024 [2d Dept 2015]; Ismail v Burnbury, 118 AD3d 756, 757 [2d Dept 2014]).  At deposition, Antiochius testified that when he first observed Perone’s vehicle, it was traveling in the opposite direction on Maple Avenue and it was about five or six car lengths away from his (Antiochius’s) vehicle.  Antiochius testified that he thought he had enough time to complete the left-hand tum and as he began to tum his vehicle in the left direction, he had to apply the brakes because he realized that he would not be able to complete the tum safely.  Antiochius further testified that only seconds elapsed from when he began the left-hand tum until the moment of impact.  Such testimony was sufficient to establish Perone’s prima facie entitlement to judgment as a matter of law (see Hyo Jin Yoon v Guang Chen, 127 AD3d at 1024; Ismail, 118 AD3d at 757; Fenster v Ellis, 71 AD3d 1079, 1081 [2d Dept 2010]).  Accordingly, the burden of going forward shifted to the opponents of the motion to raise a triable issue of material fact (see Zuckerman, 49 NY2d at 562).

In opposition, Plaintiff and Antiochius failed to raise a triable issue of material fact (see CPLR 3212 [b]).  Their assertions that Perone’s vehicle was speeding is speculative and not supported by any competent evidence in the record (see Cardona v Fiorentina, 149 AD3d 495,495 [1st Dept 2017] [“[d]espite having seen defendant’s vehicle approaching when it was 6 to 7 car lengths from the intersection, plaintiff began her left tum in front of defendant’s vehicle.  It was allegedly not until plaintiff began her tum that she noticed that defendant’s vehicle was traveling at a high rate of speed.  Such speculative assertions do not warrant denial of the [defendant’s] motion[.]”]; Loch v Garber, 69 AD3d 814, 816 [2d Dept 2010]).  In addition, the fact that Antiochius was unable to complete the left-hand turn without being struck by Perone’s vehicle “is compelling evidence of the immediate hazard created by defendant’s vehicle as it approached the intersection” (Yelder v Walters, 64 AD3d 762, 764 [2d Dept 2009] [internal quotation marks omitted]). 

Moreover, while there are discrepancies between the deposition testimony of Plaintiff/Antiochius and Perone, such discrepancies are insufficient to raise triable issues of material fact precluding the award of summary judgment in Perone’s favor because under either version of the accident, Perone was neither at fault for the happening of the collision nor did he contribute to the happening of the collision (see Lindo, 205 AD3d at 1017).  As outlined above, viewing the evidence in a light most favorable to the nonmovants, Antiochius’s testimony establishes that his violation of VTL § 1141 was the sole proximate cause of the accident.  Even under Perone’s account – that he was stopped at a red light prior to entering the intersection when Antiochius’s vehicle turned directly into his vehicle – he did nothing to contribute to the collision.  Accordingly, the motion by Perone is granted.

The court next addresses the cross-motion by Plaintiff.

In view of the foregoing, the cross-motion is denied as academic.  In any event, Plaintiff failed to demonstrate, prima facie, that Perone was negligent in the operation of his vehicle (see Guido, 214 AD3d at 717; Lindo, 205 AD3d at 1017; S.G. v Singh, 189 AD3d 786, 787 [2d Dept 2020]).  Accordingly, the burden never shifted to Perone to raise a triable issue of material fact (see Alvarez, 68 NY2d at 324).

All other arguments raised on the motion and evidence submitted by the parties in connection therewith have been considered by the court, notwithstanding the specific absence of reference thereto.  Based on the foregoing, it is hereby:

ORDERED the motion by the defendant/third-party plaintiff, Geraldo M. Perone, is granted, and the complaint is dismissed; and it is further

ORDERED the cross-motion by the plaintiff, Emily Antiochius, is denied.

E N T E R,

Dated: White Plains, New York

            May 11, 2023

________________________________

HON. WANDA B. BROWN, J.S.C.

To:   Counsel of record via NYSCEF