Brown v. Askew

202 A.D.3d 1501

163 N.Y.S.3d 353

Timothy BROWN, Plaintiff-Respondent,

v. Jason E. ASKEW, Defendant-Respondent,andWell Timed Transport, Inc., Defendant-Appellant. (Appeal No. 1.)

1137

CA 20-00284

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 4, 2022

BARTH SULLIVAN BEHR, BUFFALO (DOMINIC M. CHIMERA OF COUNSEL), FOR DEFENDANT-APPELLANT.

CELLINO LAW LLP, BUFFALO (JEANNA M. CELLINO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

LAW OFFICE OF JENNIFER S. ADAMS, WILLIAMSVILLE (REBECCA POSTEK OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Plaintiff Timothy Brown commenced a negligence action against defendant-plaintiff Jason E. Askew and defendant Well Timed Transport, Inc. (Well Timed), and Askew commenced a separate negligence action against Well Timed, each seeking to recover damages for injuries that he sustained in a multivehicle accident. The accident occurred in the afternoon on a section of Interstate 90 (I-90) westbound consisting of four driving lanes and an on-ramp/merging lane. After the on-ramp/merging lane expires, the rightmost lane of the four driving lanes becomes an off-ramp from I-90 headed toward another highway, thereby requiring any driver seeking to remain on I-90 to merge left before I-90 reduces to three through lanes. The speed limit on the subject portion of I-90 is 55 miles per hour. Askew drove down the on-ramp, merged into the rightmost lane, and then intended to merge left again into the right through lane in order to continue on I-90. Meanwhile, Brown, who was driving a tractor-trailer, was in the left-center lane, and a taxi for Well Timed was in the right-center through lane that would continue on I-90. It is undisputed that Askew began an attempt to merge into the right-center through lane but, ultimately, Askew's vehicle and the Well Timed taxi collided. The Well Timed taxi then hit Brown's tractor-trailer, which in turn hit the center barrier of I-90. The Well Timed taxi also struck the barrier and came to rest against it. Brown and Askew allegedly sustained serious injuries, and the driver of the Well Timed taxi died.

In appeal No. 1, Well Timed appeals from an order that denied its motion for summary judgment dismissing Brown's complaint and Askew's cross claim against it. In appeal No. 2, Well Timed appeals from an order that denied its motion for summary judgment dismissing Askew's complaint. We affirm in each appeal.

Well Timed contends that Supreme Court erred in denying its motions because it established as a matter of law that it was not negligent and that Askew was the sole proximate cause of the accident. On its motions, Well Timed "had the initial burden of establishing as a matter of law either that [it] was not negligent or that any negligence on [its] part was not a proximate cause of the accident" ( Gilkerson v. Buck , 174 A.D.3d 1282, 1283, 105 N.Y.S.3d 739 [4th Dept. 2019] ; see Galletta v. Delsorbo , 188 A.D.3d 1641, 1642, 132 N.Y.S.3d 375 [4th Dept. 2020] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Viewing the evidence in the light most favorable to Brown and Askew and affording them the benefit of every reasonable inference (see Esposito v. Wright , 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), we conclude in both appeals that Well Timed failed to meet that burden (see Gilkerson , 174 A.D.3d at 1283, 105 N.Y.S.3d 739 ; see generally Zuckerman , 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

Here, Well Timed submitted an accident reconstruction report and a police report that, along with the nonparty witness statements contained therein, support the conclusion that the Well Timed taxi was proceeding straight on I-90 in a nonnegligent manner when Askew negligently failed to observe the Well Timed taxi and then made an overcorrection and unsafe movements, thereby causing the accident. Well Timed's submissions, however, also contained differing versions of the accident that raise triable issues of fact regarding Well Timed's negligence (see Fayson v. Rent-A-Center E., Inc. , 166 A.D.3d 1569, 1570, 86 N.Y.S.3d 816 [4th Dept. 2018] ; Bermejo v. Khaydarov , 155 A.D.3d 597, 598, 63 N.Y.S.3d 107 [2d Dept. 2017] ). In particular, the excerpts of Brown's deposition testimony raise triable issues of fact whether Well Timed's driver drove in a negligent manner by unsafely passing Brown on the right (see Vehicle and Traffic Law § 1123 [b] ; Karash v. Adetunji , 56 A.D.3d 726, 726-727, 868 N.Y.S.2d 128 [2d Dept. 2008] ) at a speed in excess of the limit and imprudent for the conditions in the area of the merging lanes (see Vehicle and Traffic Law § 1180 [a], [b] ) and by then, in a failure to exercise reasonable care, deliberately blocking Askew from merging into the right through lane (see Kadashev v. Medina , 134 A.D.3d 767, 768, 19 N.Y.S.3d 898 [2d Dept. 2015] ).

Well Timed nonetheless contends that those portions of Brown's testimony—which it submitted in support of its own motions—are unreliable and speculative and thus insufficient to raise a triable issue of fact. That contention lacks merit. Initially, to the extent that Well Timed suggests that we should disregard Brown's version of the accident as not credible, we reject that suggestion inasmuch as "[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact" ( Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 505, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ; see Rawls v. Simon , 157 A.D.3d 418, 419, 66 N.Y.S.3d 126 [1st Dept. 2018] ). In any event, Brown's testimony was based on his personal observations of the accident, not speculation (see Fayson , 166 A.D.3d at 1570, 86 N.Y.S.3d 816 ).

With respect to Brown's testimony regarding the speed of the Well Timed taxi, "a ‘lay witness will ordinarily be permitted to testify as to the estimated speed of an automobile, based upon the prevalence of automobiles in our society, the frequency with which most people view them at various speeds and an adequate foundation that the witness has estimated the speed of automobiles on prior occasions’ " ( Guthrie v. Overmyer , 19 A.D.3d 1169, 1170, 797 N.Y.S.2d 203 [4th Dept. 2005] ). Here, the deposition transcript establishes that Brown's testimony...