Automobile Cases - Positive Results
Giuseppe Sciafla v. Roman Catholic Church of Our Lady of Hope (116 A.D.3d 690 N.Y.A.D. 2 Dept., 2014)
This claim involved a pedestrian/vehicle collision which allegedly occurred in the parking lot of Our Lady of Hope R.C. Church located at 61-27 71st Street, Middle Village, New York 11379, on December 5, 2009. The complaint alleged that the plaintiff was struck by an unidentified vehicle in the parking lot of the Church, sustaining injuries. The Plaintiff could not identify the owner or operator of the vehicle involved in this collision. The allegation of negligence as against Our Lady of Hope R.C. Church is that the Church, “failed to provide traffic direction personnel and traffic control devices.” Rev. Michael Carrano, the Pastor of Our Lady of Hope Church, indicated that he had no knowledge of this incident. Our office moved for Summary Judgment on the issue of liability. That application was denied by Judge Weiss in Queens County, and we appealed the adverse decision. A copy of the Appellate Division order is annexed. On April 4, 2014, the Appellate Division, Second Department held in our favor, dismissing the plaintiff’s complaint, stating: “The Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint. The defendant established, prima facie, that the sole proximate cause of the accident was the negligence of the driver of the vehicle that struck the plaintiff ( see Stone v. Williams, 64 N.Y.2d 639, 642, 485 N.Y.S.2d 42, 474 N.E.2d 250; Margolin v. Friedman, 43 N.Y.2d 982, 983, 404 N.Y.S.2d 553, 375 N.E.2d 734; Sheehan v. City of New York, 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832; Castillo v. Amjack Leasing Corp., 84 A.D.3d 1298, 924 N.Y.S.2d 156). In opposition, the plaintiff failed to raise a triable issue of fact.”
Roggio et al v. Andrea Maria Sett
This suit arose out of a fatal auto collision which occurred on Tuesday, January 13, 2004, at approximately 7:15 p.m. at the intersection of northbound Gerritson Avenue and Channell Avenue in Brooklyn, New York. At this location, Andrea Maria Sett, was operating a 2002 Ford registered to Francis Giammarino. The police accident description indicates that Sett's vehicle was traveling northbound in the right lane when it was in collision with a 1990 Oldsmobile owned and operated by Vincent Litto.
The police report indicated that the Litto vehicle swerved into the northbound right lane and struck Sett's vehicle head on causing the death of Kristian Roggio, a passenger in Sett’s vehicle. James DiSiena, Scott Endrulat and Corey Lun also brought suit as a result of this accident. Our information indicated that the co-defendant, Vincent Litto, was inhaling the fumes from a “dust off” can when he crossed over a double yellow line causing a head on impact with Sett’s vehicle which was operating fully within the right lane of travel in the opposite direction of the Litto vehicle. Summary Judgment on liability was denied in the Lower Court and was appealed.
The Appellate Division, Second Department in a decision issued April 10, 2010, found, “A driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic. Indeed, [c]rossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making" (Sullivan v Mandato, 58 AD3d 714, 714  [citations and internal quotation marks omitted]). Here, the appellants established their entitlement to judgment as a matter of law by submitting evidence demonstrating, prima facie, that Litto violated Vehicle and Traffic Law § 1126 (a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing the collision (see Scott v Kass, 48 AD3d 785 ). In opposition, Endrulat and DiSiena failed to submit evidence sufficient to raise a triable issue of fact (see CPLR 3212 [b]). Accordingly, the Supreme Court should have granted the appellants' motion, in effect, for summary judgment dismissing the complaint insofar as asserted against them.”
Yenna v. Yenna
This case arises out of a one car automobile accident, in which the plaintiff suffered injuries resulting in T10 paraplegia. At issue in this case was the liability of Bartholomew C. Yenna, who was a front seat passenger in the vehicle owned and operated by his father, Bartholomew J. Yenna, which left the roadway and crashed into trees, allegedly because the driver, Bartholomew J. Yenna fell asleep at the wheel. The theory of liability against Bartholomew J. as the front seat passenger, was that he permitted the operator to fall asleep and failed to take measures to prevent the driver from falling asleep, as well as failing to insure that the driver remained awake.
It is alleged that there was a verbal agreement that the front seat passenger would keep an eye on the driver, to see that the driver remained awake and that there were no problems with regard to the ability of the driver to continue driving the vehicle. Our office moved for summary judgment on the case on the issue of liability. The Lower Court denied our motion based upon the Court’s finding that “there may be a reasonable expectation that the front seat passenger would assume a duty to assist the driver in maintaining safe control of the car, including monitoring the road for hazards and the driver for alertness. Whether or not that duty was breached is a question for the jury.” (Emphasis added.) This finding by the Court has created a duty based upon speculation by the Court rather than based upon actual testimony or prior controlling case law.
Furthermore, the cases cited by the Court, Strychalski v. Dailey, 65 AD 3d 546; Zannelli v. Walker, 27 AD 3d 460; Knorr v. City of Albany, 68 AD 2d 982; Purchase v. Jeffrey, 33 AD2d 620, are all distinguishable from the case at bar, as these cases deal with a plaintiff passenger who assumed the risk by entering a vehicle operated by an intoxicated person, or the plaintiff was aware of a special condition that he had a duty to alert the defendant driver about. None of the cases cited by the Lower Court dealt with the duty of a non-owner/operator passenger’s duty to a co-passenger. In a decision issued on February 1, 2011, the Appellate Division, Second Department, reversed the lower Court and granted our client dismissal of the compliant. The Appellate Court held, “ Here, the plaintiff chose to participate in a non-stop 20-hour driving trip. Under the circumstances, Yenna's conduct did not place the plaintiff in a more vulnerable position than that which he otherwise would have been in by participating in such an activity (see Heard v City of New York, 82 NY2d at 72; cf. Gordon v Muchnick, 180 AD2d 715). More specifically, even assuming that Yenna agreed to monitor the driver, this conduct "neither enhanced the risk [that the plaintiff] faced" from the activity in which he chose to participate, nor did it "create[ ] a new risk" (Heard v City of New York, 82 NY2d at 73). Further, the plaintiff did not advance any viable theory as to how Yenna "induced him to forego some opportunity to avoid risk," by, for example, contending that the alleged agreement induced him to take the trip in the first instance (id. at 73). In this regard, "[s]imply stated, [Yenna's] actions created no justifiable reliance" (id. at 73). Accordingly, the Supreme Court should have granted Yenna's motion for summary judgment dismissing the complaint insofar as asserted against him.”