McKenna v. Reale
137 A.D.3d 1533
N.Y. App. Div.2016Check TreatmentStevenson v. State
(End of Opinion)
Judith A. McKenna, Individually and as Administrator of the Estate of James J. McKenna Jr., Deceased, Appellant, v John T. Reale, Respondent.
Supreme Court, Appellate Division, Third Department, New York
April 14, 2016
[29 NYS3d 596] | 137 AD3d 1533
On April 30, 2009, James J. McKenna Jr. (hereinafter decedent), who was riding a bicycle, was struck and killed by defendant, 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
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 establish 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 circumstances 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 [decedent’s] failure ... to yield the right of way” to defendant’s truck. Defendant testified that there was no traffic as he proceeded through the intersection 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 decedent, 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 that defendant
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 moment he observed defendant’s vehicle and the moment of impact (see PJI 2:320). Defendant testified that he saw decedent immediately prior to impact, that decedent was facing “[t]owards [his] right” and that he could not recall whether decedent looked in his direction. This testimony does not establish, as a matter of law, that decedent was unaware of the impending collision. Moreover, operative facts that are solely within the movant’s knowledge should not form the basis for a motion for summary judgment (see Budik v CSX Transp., Inc., 88 AD3d at 1098). In our view, a jury should be permitted to determine whether decedent was aware of impending serious physical injury or death, even if the duration of such comprehension was limited (see Boston v Dunham, 274 AD2d at 711; Lang v Bouju, 245 AD2d 1000, 1001 [1997]).
Finally, turning to plaintiff’s claim for wrongful death,
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.
Lynch, J.
Notes
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On this appeal, plaintiff asserts, without record support, that Columbia County has a lien for funeral expenses.