McKenna v RealeMcKenna v Reale
Burke, Scolamiero, Mortati & Hurd, LLP, Hudson (Judith B. Aumand of counsel), for respondent.
Lynch, J. Appeal from an order of the Supreme Court (Zwack, J.), entered August 21, 2015 in Rensselaer County, which granted defendant‘s motion for summary judgment dismissing the complaint.
On April 30, 2009, James J. McKenna Jr. (hereinafter decedent), who was riding a bicycle, was struck and killed by dеfendant, who was driving his vehicle southbound on Route 82 in the Town of Livingston, Columbia County. The collision occurred just past the intersection of Routes 82 and 9 as decedent, also traveling southbound, crossed Route 82 from the east to the west shoulder in front of defendant‘s vehicle. Plaintiff, as administrator of decedent‘s estate, commenced this action for wrongful death and conscious pain and suffering. Following completion of discovery, Supreme Court granted defendant‘s motion for summary judgment dismissing the complaint. Plaintiff now appeals.
Generally, to succeed on a motion for summary judgment, a defendant must submit sufficient admissible evidence to establish the absence of any material issues of fact and to warrant judgment as a matter of law in his or her favor (see
Assuming that decedent was negligent, because there can be more than one proximate cause of an accident (see O‘Brien v Couch, 124 AD3d 975, 977 [2015]), defendant‘s obligation on this motion was to estаblish his “freedom from comparative fault as a matter of law” (Palmeri v Erricola, 122 AD3d 697, 698 [2014]; see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). Drivers have a duty to exercise reasonable care under the circumstanсes presented and to see and respond to the conditions in the roadway within their view (see Rivera v Fritts, 136 AD3d 1249, 1251 [2016]; Smith v Allen, 124 AD3d 1128, 1130 [2015]; see also PJI 2:77). Here, defendant relies primarily on his own deposition testimony and the police report wherein the investigating officer concluded that “the primary causative factor of th[e] collision was [dеcedent‘s] failure . . . to yield the right of way” to defendant‘s truck. Defendant testified that there was no traffic as he proceeded through the interseсtion and that he was driving below the speed limit at a constant speed. He acknowledged that, at this point, he looked towards the gas station to the right, and then looked down at his gas gauge. When he “looked back up at the road,” he saw decedent for the first time “[r]ight in front of [him].” Defendant explained that he had “tunnel vision” and was uncertain whether he saw the bike in motion moving across the road. He braked and attempted to steer left but hit deсedent, who rolled across the hood and hit the windshield before landing behind the truck. In our view, from defendant‘s own testimony, a jury could reasonably conclude that defendant failed to see what there was to be seen through the proper use of his senses. Accordingly, we disagree with Supreme Court‘s conclusion that defendant met his prima facie burden as to the cause of decedent‘s death (see Palmeri v Erricola, 122 AD3d at 698; Boston v Dunham, 274 AD2d at 710).
Next, Supreme Court properly determined thаt defendant established prima facie entitlement to summary judgment dismissing plaintiff‘s claim for conscious pain and suffering from the moment of injury to the moment of death. To establish such a claim, the evidence must support a finding that decedent experienced “some level of awareness” before dying (McDougald v Garber, 73 NY2d 246, 255 [1989] [internal quotation marks omitted]; see Martin v Reedy, 194 AD2d 255, 259 [1994]). Accordingly, on this motion, defendant‘s initial burden was to establish that decedent did not endure conscious pain and suffering (see Houston v McNeilus Truck & Mfg., Inc., 115 AD3d 1185, 1186 [2014]). Dismissal of a claim for conscious pain and suffering is not warranted in the absence of proof that decedent was unconscious immediately after the accident (see id.; Barron v Terry, 268 AD2d 760, 761 [2000]). Here, the paramedics reported that decedent was dead upon their arrival, the coroner concluded that decedent‘s death was instantaneous from multiple head injuries and defendant testified that, as soon as he approached after the accident, he observed that decedent was unconscious, not moving and did not appear to be breathing. In our view, this evidence of decedent‘s condition immediately following the accident, coupled with the coroner‘s and paramedic‘s reports, was sufficient to demonstrate prima facie еntitlement to summary judgment dismissing plaintiff‘s cause of action for conscious pain and suffering for the physical injuries sustained. That defendant placed а blanket over decedent does not, as plaintiff maintains, present a question of fact as to whether decedent was conscious (see Boston v Dunham, 274 AD2d at 711).
We reach a different conclusion with respect to plaintiff‘s claim for preimpact terror, which pertains to the emotional pain and suffering that decedent may have endured between the
Finally, turning to plaintiff‘s claim for wrongful death, recovery may be had for “fair and just compensation for the pecuniary injuries resulting from [a] decedent‘s death tо the persons for whose benefit the action is brought” (
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendant‘s motion for summary judgment dismissing the causes of action for preimpact terror and wrongful death; motion denied to said extent; and, as so modified, affirmed.