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Sidona Allison v. Rite Aid Corporation

September 26, 2011


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Sidona Allison has brought suit alleging that defendant Bharat Hindgorani negligently caused a collision between the car he was driving and Allison's car. Defendants contend that Allison's own negligence at least in part caused the collision. The parties have consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Allison has filed a motion for partial summary judgment on the issues of Hindgorani's alleged negligence and Allison's alleged comparative negligence. For the reasons discussed below, Allison's motion for partial summary judgment is granted.


The following facts are undisputed.

On November 15, 2008, Allison and Hindgorani were each driving an automobile northbound on Grand Concourse, heading toward the intersection of Mount Eden Avenue in Bronx, New York. See Decl. of Sidona Allison in Supp. of Mot. for Partial Summ. J., filed Aug. 16, 2011 (Docket # 20) ("Allison Decl.") ¶¶ 3--4; accord Defs.' Rule 56.1 Statement, filed Sept. 1, 2011 (Docket # 26) ¶ 1. Hindgorani was driving a minivan as part of his duties as an employee of defendant Rite Aid Corporation. See Answer, dated May 15, 2009 (annexed as Ex. 2 to Decl. of Matthew J. McMahon in Supp. of Mot. for Partial Summ. J., filed Aug. 16, 2011 (Docket # 21) ("McMahon Decl.") ¶ 2 (admitting ¶ 12 of the Compl., dated Apr. 14, 2009 (annexed as Ex. 1 to McMahon Decl.)). Defendant Gelco Corp. owned the minivan that Hindgorani drove and had leased it to Rite Aid Corporation. Id. (admitting ¶¶ 10, 11, and 14 of the Compl.).

As the drivers approached the intersection, Allison was driving along the left lane of the two-lane main thoroughfare of Grand Concourse, while Hindgorani was driving along the parallel service road to the right. See Allison Decl. ¶¶ 3--5; accord Defs.' Rule 56.1 Statement ¶ 1. A metal divider separates the thoroughfare and the service road. See Allison Decl. ¶ 5; id, Exs. 1--3. Traffic signs were posted alongside the portion of the service road on which Hindgorani drove stating that left-hand turns were prohibited from the service road. See id. ¶ 6--7; id., Ex. 3; accord Defs.' Rule 56.1 Statement ¶ 1. Nevertheless, after coming to a full stop at the intersection of Grand Concourse and Mount Eden Avenue, Hindgorani turned left from the service road onto Mount Eden Avenue. Dep. Tr. of Bharat Hindgorani, dated Aug. 16, 2011 (annexed as Ex. 5 to McMahon Decl.) ("Hindgorani Dep."), at 27--28, 31.

After making this turn, Hindgorani's minivan crossed into the lane of the main road in which Allison was driving. Allison Decl. ¶ 10. "A little bit before" the collision, Allison saw Hindgorani's car passing through the intersection and applied his brakes "real hard," steering away from Hindgorani. Dep. Tr. of Sidona Allison, dated Jan. 5, 2011 (annexed as Ex. 4 to McMahon Decl.) ("Allison Dep."), at 31--32; Allison Decl. ¶ 10. Allison did not completely avoid hitting Hindgorani, however, and instead collided with the left side of Hindgorani's minivan. Allison Dep., at 31--33. At the time of the accident, both motorists were driving within the speed limit. Allison Dep., at 15, 31; Hindgorani Dep., at 29.


A. Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59 (1970)); accord Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ("[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.").

Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original), and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the non-movant fails to make a showing sufficient to establish the existence of an element essential to its case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (internal quotation marks and citation omitted). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247--48).

B. Negligence

Because the parties have relied on New York State law in presenting their arguments to this Court, we assume that New York law applies to this diversity action. See, e.g., Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 121 n.5 (2d Cir. 1998). Under New York law, negligence is the failure to exercise reasonable care under the circumstances. Beadleston v. Am. Tissue Corp., 41 A.D.3d 1074, 1076 (3d Dep't 2007). In addition, a violation of an applicable "State statute that imposes a specific duty constitutes negligence per se." Elliott v. City of New York, 95 N.Y.2d 730, 734 (2001). New York State traffic law provides that "no driver of a vehicle shall turn a vehicle at an intersection other than as directed and required by [any] markers, buttons, signs, or other markings," N.Y. Veh. & Traf. Law § 1160(d). Accordingly, the unexcused failure of an automobile driver to adhere to the instructions posted on roadway signs constitutes negligence as a matter of law. See McCauley v. Sidor, 272 A.D.2d 528, 529 (2d Dep't 2000). As a result, if the driver of an automobile makes a prohibited turn from a service road in violation of a posted roadway sign, he acts negligently as a matter of law. Blangiardo v. Hirsch, 29 A.D.3d 841, 842 (2d Dep't 2006).

A tortfeasor is typically liable for those injuries that his negligent act proximately caused. Generally, an act proximately causes a certain event when the act is a "substantial cause" of the event, Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980), or where the event is a "normal or foreseeable ...

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