Driver Crosses Double Yellow Line Striking Oncoming Motorist

Brief Summary

A driver in Suffolk County Crossed the Double Yellow Line causing a head on collision that injured our client.  BBNR made a motion for summary judgment and the court granted our motion, finding the defendant at fault for the accident as a matter of law.  The case settled shortly after winning the decision.

FARON V. TURANO

Supreme Court, Suffolk County, Index No 618440/2016

ORDERED that the motion by plaintiff Andrzej Faron for summary judgment in his favor on the

issue of negligence is granted.

          Plaintiff Andrzej Faron commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Sound Avenue and Phillips Avenue in the Town of Riverhead on July 21, 2015. It is alleged that the accident occurred when the vehicle owned by defendant Marie Turano and operated by defendant Leonard Turano crossed over the double yellow line into oncoming traffic and struck the front of the vehicle owned and operated by plaintiff. Prior to the subject collision, plaintiff s vehicle was traveling eastbound on Sound Avenue and defendants’ vehicle was travel westbound on Sound Avenue.

          Plaintiff now moves for summary judgment in his favor on the issue of negligence on the basis that Leonard Turano’s negligent operation of the Turano vehicle was the sole proximate cause of the subject accident. In support of the motion, plaintiff submits copies of the pleadings, his own affidavit, photographs of the vehicles following the subject collision, a certified copy of the police accident report. Defendants oppose the motion on the grounds that the motion is premature, since depositions have not been conducted, and that there are triable issues of fact as to whether plaintiff s operation of his motor vehicle contributed to the subject accident’s occurrence.

          To establish prima facie entitlement to judgment as a matter of law, a movant must come forward with evidentiary proof, in admissible form, demonstrating the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395,165 NYS2d 498 [1957]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]).

          Crossing a double yellow line into the opposing lane of traffic is a violation of Vehicle and Traffic Law Sec. 1126(a) and constitutes negligence as a matter of law, unless there is a justified emergency situation not of the driver’s own making (see Sullivan v Mandato, 58 AD3d 714, 873 NYS2d 96 [2d Dept 2009]; Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 AD3d 1071,832 NYS2d 114 [2d Dept 2007]; Koch v Levenson,225 AD2d 592, 638 NYS2d 785 [2d Dept 1996]). A driver is not required to anticipate that a motor vehicle traveling in the opposite direction will cross over into oncoming traffic (see Barbaruolo v DiFede,73 AD3d 957,900 NYS2d 671[2d Dept 2010]; DiSenav Giammarino, 72 AD3d 873, 898 NYS2d 664 [2d Dept 2010]; Koch v Levenson, 225 AD2d 592, 638 NYS2d 785).

          In his affidavit, plaintiff states that he was traveling, approximately 35 to 40 mph, eastbound on Sound Avenue and that the roadway is divided by a double yellow line with one lane of travel for the east and westbound lanes of travel. Plaintiff states that he observed defendants’ vehicle traveling westbound in the eastbound lane of travel with its headlights on, heading directly towards his vehicle seconds “moments before the accident occurred.” Plaintiff states that defendants’ vehicle continued to travel in his lane of traffic until his vehicle was struck “head on” by defendants’ vehicle. Plaintiff further states he was unable to pull over to the shoulder of the roadway, because it was too small, and there were trees covering the east and westbound sides of the roadway.

          Based upon the foregoing evidence, plaintiff established a prima facie case by demonstrating that defendant Leonard Turano’s negligent operation of the Turano vehicle was the sole proximate cause of the subject accident (see Foster v Sanchez, 17 AD3d 372, 313,792 NYS2d 579 [2d Dept2002]; Marsicano v Dealer Stor. Corp., 8 AD3d 451, 452, 779 NYS2d 102 [2d Dept 2004]; Patti v New York City Tr. Auth., 296 AD2d 484, 745 NYS2d 558 [2d Dept 2002]). The evidence submitted by plaintiff established that the sole proximate cause of the subject accident was the Turano vehicle crossing over the double yellow line into oncoming traffic in violation of Sec. 1126 (a) of the Vehicle and Traffic Law, and striking plaintiff’s vehicle (see Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 67l [2d Dept 2010]; Campbell v County of Suffolk, 57 AD3d 821, 871 NYS2d 222 [2d Dept 2008]; Scott v Kass, 48 AD3d 785, 851 NYS2d 649 [2d Dept 2008]). This violation of the Vehicle and Traffic Law constitutes negligence per se (see Vainer v DiSalvo, 79 AD3d 1023, 914 NYS2d 236 [2d Dept 2010]; Marsicano v Dealer Stor. Corp., 8 AD3d 451,779 NYS2d 102 [2d Dept 2004]; Gadon v Oliva, 294 AD2d 397, 742 NYS2d 122 [2d Dept 2002]). Furthermore, plaintiff was not obligated to anticipate that a vehicle traveling in the opposite direction would cross over into oncoming traffic and strike his vehicle “head on” (see Ferebee v Amaya, 83 AD3d 997, 922 NYS2d 472 [2d Dept 2011]; Snemyr v Morales-Aparicio, 47 AD3d 377, 850 NYS2d 489 [2d Dept 2008]; Leev Ratz, 19 AD3d 552,798 NYS2d 80 [2d Dept 2005]). Indeed, such a situation presents an emergency situation and the actions of a driver presented with such a situation must be judged in that context (see Rodriguez v Guiteruez, 138 AD3d 964, 31 NYS3d 97 L2d Dept 20161; Thomas v New York Ciry Tr. Auth., 37 AD3d 821,829 NYS2d 921 l2dDept 20071; Bentley v Moore, 251 AD2d 612, 675 NYS2d 108 [2d Dept 1998]). Based upon the submitted evidence, plaintiff did not act negligently under the emergency circumstances presented (see Mandel v Benn, 67 AD3d 746, 889 NYS2d 81 [2d Dept 2009]; Marschv Catanzaro, 40 AD3d 941, 837 NYS2d 195 [2d Dept 2007]; Huggins v Figueroa, 205 AD2d 460, 762 NYS2d 404 2d Dept [2003]).

          In opposition to plaintiff’s prima facie showing, defendants failed to raise a triable issue of fact (see Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 671 [2d Dept 2010]). Notably, neither defendant Leonard Turano nor Marie Turano, who was riding as a front seat passenger in the Turano vehicle at the time of the subject accident, in opposition to the motion, submitted an affidavit setting forth his or her version of how the accident occurred. Rather, defendants have submitted their attorney’s affirmation in opposition to plaintiff s prima facie showing. The affirmation of an attorney has “no probative weight” (lacone v Passanisi, 89 AD3d 991, 993, 933 NYS2d 373 2d Dept 2011], quoting Bates v Yasin, 73 AD3d 474, 474,788 NYS2d 397 [2d Dept 2004]; see e.g. Simplex v Grinnell v Ruby Weston Manor, 59 AD2d 610, 873 NYS2d 2l0 [2d Dept 2009]). An attorney’s affirmation only may serve as a vehicle for the submission of attachments which provide evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Tingling v C.I.N.H.R.,74 AD3d 954, 903 NYS2d 89 [2d Dept 2010]). Thus, defendants have not submitted any evidence in opposition to the motion (see Larson v Delgado, 71 AD3d 739, 897 NYS2d 167 [2d Dept 2010]). Moreover, mere speculation by defendants’ counsel that plaintiff could have done something to avoid defendant’s vehicle was crossing over a double yellow line into his lane of travel is insufficient to defeat a motion for summary judgment (see Eichenwald v Chaudhry, 17 AD3d 403, 794 NYS2d 391 [2d Dept 2005]). Contrary to defendants’ counsel’s contention, the motion is not premature. Before a party can defeat or delay a motion for summary judgment claiming ignorance of fact due to unconducted discovery (see CPLR 3212 [f]), a party must demonstrate that the needed proof is within the exclusive knowledge of the moving party (see Berkeley v Fed. Bank& Trust v 229 E. 53’d St. Assoc., 242 AD2d 489, 662 NYS2d 481 [1st Dept 1997]), that the claims in opposition are supported by something more than mere hope or conjecture (see Neryaev v Solon, 6 AD3d 510, 775 NYS2d 348 [2d Dept 2004]), and that the party has made reasonable attempts to discover these facts and that the facts sought would give rise to a triable issue (see Cruz v Ortis El. Co., 238 AD2d 540, 656 NYS2d 688 [2d Dept 19971). Here, defendants failed to make such a showing. Accordingly, plaintiff s motion for partial summary judgment in his favor on the issue of negligence is granted.

Dated: 5/4/17

Hon Paul J. Baisley, Jr., J.S.C.