Filed Papers: Claim, Answer 8, 9
On September 18, 1997, at approximately 9:20 a.m., claimant was driving his
father's 1980 Harley-Davidson motorcycle north on Oak Street in the City of
Plattsburgh, Clinton County. Oak Street is a one-way street with two lanes for
traffic and claimant was operating the motorcycle in the right (east) lane.
Riley Avenue intersects Oak Street and a stop sign on Riley Avenue requires
motorist to stop and yield the right-of-way to traffic on Oak Street. John
Welch, an employee of defendant, was operating a 1995 Chevrolet owned by
defendant in an easterly direction on Riley Avenue. Although Mr. Welch was on
duty as a State Police investigator, he was not responding to any emergency
situation. Mr. Welch failed to observe claimant and pulled onto Oak Street,
where the front of his car struck claimant's motorcycle. Claimant sustained
various alleged injuries and subsequently filed and served the instant claim.
Disclosure has been completed, a note of issue filed and claimant now seeks
summary judgment on the issue of liability.
Initially, the court will briefly address claimant's failure to comply with
CPLR 3212(a), which provides that a motion for summary judgment must be made
within 120 days of filing the note of issue unless excused by the court. The
note of issue was filed on Monday, July 3, 2000. The affidavit of service
annexed to the motion reflects that the motion papers were mailed on Wednesday,
November 1, 2000. November 1 is 121 days after July 3 and, thus, the motion was
one day late. The court, however, retains discretion to consider motions for
summary judgment that fail to comply strictly with CPLR 3212(a) (Gonzalez v
98 Mag Leasing Corp., 95 NY2d 124; Rossi v Arnot Ogden Med. Ctr., 252
AD2d 778). In light of the fact that the motion was only one day late and a
trial is not scheduled to commence until May 2001, the court, in the exercise of
its discretion, will consider the merits of the motion (see, Machac v
Anderson, 261 AD2d 811).
Summary judgment is frequently characterized as a "drastic remedy," which
should be employed only when it is clear no triable issues exist (Andre v
Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258
AD2d 732). The proponent of the motion bears the threshold burden of tendering
sufficient evidence to eliminate any material issues of fact and establishing
the propriety of judgment as a matter of law (Winegrad v New York Univ. Med.
Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the movant
meets the threshold burden, the nonmoving party must step forward with evidence
demonstrating a triable issue of fact to defeat the motion (Moran v Technical
Bldg. Servs., 258 AD2d 697; Hasbrouck v City of Gloversville, 102
AD2d 905, affd 63 NY2d 916). The proof submitted to raise a triable
issue generally must be in admissible form (Vermette v Kenworth Truck
Co., 68 NY2d 714), particularly where disclosure has been completed and the
party opposing the motion fails to offer any explanation for failing to meet
such requirement (see, Zuckerman v City of New York, 49 NY2d 557, 562;
Amedure v Standard Furniture Co., 125 AD2d 170).
There is abundant appellate precedent establishing that summary judgment is
appropriate in a situation where one driver has clearly operated a vehicle in
violation of the Vehicle and Traffic Law, such as pulling through a stop sign
into the path of a vehicle that has the right-of-way (see, e.g., Vogel v
Gilbo, AD2d , 715 NYS2d 455; Le Claire v
Pratt, 270 AD2d 612; Matt v Tricil [N.Y.], 260 AD2d 811; Rumanov v
Greenblatt, 251 AD2d 566, lv denied 92 NY2d 946; Bolta v
Lohan, 242 AD2d 356). Once the proponent of summary judgment has
established that the other party failed to yield the right-of-way in the face of
a stop sign, summary judgment will not be defeated by interjecting comparative
negligence based merely upon speculation or conjecture about the speed of the
claimant's vehicle (Vogel v Gilbo, supra; Matt v Tricil [N.Y.],
supra) or the opportunity for evasive action (Le Claire v Pratt, supra;
Miesing v Whinnery, 233 AD2d 551).
Here, it is undisputed that Mr. Welch pulled through a stop sign and collided
with the motorcycle operated by claimant, who had the right-of-way. Indeed, Mr.
Welch, to his great credit and that of the State Police, candidly acknowledged
at his examination before trial that he told claimant immediately following the
accident that "it was my fault" and he stated, "I should have seen him coming
and not pulled out in the intersection" (Exhibit F annexed to Graziane
Affirmation, at 31). Claimant has met his threshold burden of establishing
entitlement to judgment as a matter of law.
In an effort to raise factual issues, defendant argues several points.
Defendant proclaims that an issue of fact exists regarding claimant's speed,
which implicates comparative negligence. The papers before the court, however,
reflect that the accident was thoroughly investigated and that numerous members
of the City of Plattsburgh police and State police responded to the scene. Yet,
other than Mr. Welch's speculation that he thinks claimant was going over
the speed limit, no other evidence has been offered indicating that claimant's
speed was a significant factor in the accident. Claimant maintained that he was
traveling within the posted speed limit. The court is not convinced that
defendant has offered sufficient proof on the issue of claimant's speed to
defeat summary judgment.
Similarly unavailing is defendant's argument that claimant should have taken
evasive action. Defendant's argument in such regard is based on conjecture.
Claimant's testimony reflects that he did not have ample time to avoid the
accident and defendant has failed to raise a substantial issue of fact
indicating otherwise (see, Le Claire v Pratt, supra; Miesing v Whinnery,
Defendant also asserts that the culpable conduct of a third party may be
implicated because a purportedly illegally parked vehicle obstructed Mr. Welch's
vision. Interestingly, defendant asserted such argument as a second
affirmative defense in its answer. When asked to particularize the defense,
defendant withdrew it in its verified bill of particular dated June 30, 2000.
Defendant has offered insufficient evidence to convince the court that the
previously withdrawn argument can now be successfully resurrected and serve as a
basis to defeat claimant's motion.
ORDERED that claimant's motion is granted, and the Chief Clerk of the
Court of Claims is directed to enter interlocutory judgment in favor of claimant
against defendant on the issue of liability; and it is further
ORDERED that the trial currently scheduled to commence on May 1, 2001
will be limited to the issues of serious injury (Insurance Law § 5102) and