Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nesbitt v. Gallant

Supreme Court of New York, Second Department

April 5, 2017

Eileen Nesbitt, et al., respondents,
v.
Robert A. Gallant, appellant. Index No. 12371/12

          Martin, Fallon & Mullé, Huntington, NY (Richard C. Mullé and Stephen P. Burke of counsel), for appellant.

          Edelman, Krasin & Jaye, PLLC, Westbury, NY (Thomas S. Russo and Tyler Rossworn of counsel), for respondent Eileen Nesbitt.

          Carman, Callahan & Ingham, LLP, Farmingdale, NY (James M. Carman and Jami C. Amarasinghe of counsel), for respondent Liberty Mutual Insurance Company, as subrogee of Eileen Nesbitt.

          RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In a consolidated action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated October 13, 2015, which denied his motion for summary judgment dismissing the plaintiffs' respective complaints.

         ORDERED that the order is reversed, on the law, with one bill of costs, and the defendant's motion for summary judgment dismissing the plaintiffs' respective complaints is granted.

         In January 2011, the plaintiff Eileen Nesbitt allegedly was injured in a traffic accident on Middle Country Road in Riverhead. The accident occurred when the vehicle of the defendant, Robert A. Gallant, which was traveling eastbound, collided with Nesbitt's vehicle as Nesbitt was trying to make a left turn into the westbound lane from a gas station on the eastbound side of the road. Nesbitt commenced this action alleging that the defendant, who had the right-of-way (see

         Vehicle and Traffic Law § 1143), was negligent in the operation of his vehicle. Subsequently, the plaintiff Liberty Mutual Insurance Company (hereinafter Liberty Mutual), as subrogee of Nesbitt, commenced a subrogation action against the defendant seeking to recover damages representing the insurance benefits it paid to Nesbitt under her insurance policy. The actions were consolidated. The defendant moved for summary judgment dismissing the complaints. The Supreme Court denied the motion. The defendant appeals, and we reverse.

         Defendants moving for summary judgment in a negligence action arising out of an automobile accident have the burden of establishing, prima facie, that they were not at fault in the happening of the accident (see Boulos v Lerner-Harrington, 124 A.D.3d 709, 709). Although drivers with the right-of-way are entitled to anticipate that other drivers will obey the traffic laws, they nonetheless still have a duty to avoid colliding with other vehicles (see Twizer v Lavi, 140 A.D.3d 736, 737; Bonilla v Calabria, 80 A.D.3d 720, 720). Moreover, since there may be more than one proximate cause of an accident (see Estate of Cook v Gomez, 138 A.D.3d 675, 676-677), drivers who had the right-of-way must establish prima facie that their conduct was not a proximate cause of the accident (see Desio v Cerebral Palsy Transp., Inc., 121 A.D.3d 1033, 1034-1035). Finally, although proximate cause is generally an issue of fact (see Kalland v Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889), it may be decided as a matter of law where only one conclusion may be drawn from the facts (see Estate of Cook v Gomez, 138 A.D.3d at 676-677; cf. Kalland v Hungry Harbor Assoc., LLC, 84 A.D.3d at 889).

         Here, in support of his motion for summary judgment, the defendant submitted, among other things, a surveillance tape that depicted Nesbitt's vehicle leaving the gas station and entering Middle Country Road as the defendant's vehicle approached. The Supreme Court refused to consider this evidence on the ground that it was not properly authenticated. The court improvidently exercised its discretion in declining to consider the surveillance tape, because the defendant adequately authenticated the tape by averring that it accurately depicted what had occurred at the time of the accident (see People v Patterson, 93 N.Y.2d 80, 84).

         The surveillance tape and the additional evidence submitted by the defendant in support of his motion established, prima facie, that he was not at fault in the happening of the accident and that the sole proximate cause was Nesbitt's conduct in entering the roadway when the defendant's vehicle was so close (see Lukyanovich v H.L. Gen. Contrs., Inc., 141 A.D.3d 693, 693-694; Nohs v DiRaimondo, 140 A.D.3d 1132, 1133-1134; Desio v Cerebral Palsy Transp., Inc., 121 A.D.3d at 1035). In opposition, Nesbitt and Liberty Mutual failed to demonstrate the existence of a triable issue of fact. Their contentions rested on speculation, not proof, that the defendant may have been negligent (see Adobea v Junel, 114 A.D.3d 818, 820).

         Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.