Charles v. Am. Dream Coaches

210 A.D.3d 948

178 N.Y.S.3d 761

Tyrena S. CHARLES, appellant,

v.AMERICAN DREAM COACHES, et al., respondents.

2020–01727

Index No. 100822/16

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

Argued—September 30, 2022

November 23, 2022

Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Peknic, Peknic & Schaefer, LLC, Long Beach, NY (Catherine Papandrew of counsel), for respondents.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated January 10, 2020. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

On July 17, 2015, shortly after it exited the Holland Tunnel in New Jersey, a vehicle operated by the plaintiff collided with a bus owned by the defendant American Dream Coaches and operated by the defendant Benjamin Nieves. The plaintiff subsequently commenced this action to recover damages for personal injuries against the defendants. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the defendants’ motion. The plaintiff appeals.

" ‘A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident’ " ( McPhaul–Guerrier v. Leppla, 201 A.D.3d 920, 921, 162 N.Y.S.3d 116, quoting Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Charlery v. Allied Tr. Corp., 163 A.D.3d 914, 915, 81 N.Y.S.3d 523 [internal quotation marks omitted]; see Chimbo v. Bolivar, 142 A.D.3d 944, 945, 37 N.Y.S.3d 339 ).

Here, the defendants failed to establish, prima facie, that they were free from fault in the happening of the accident, because their submissions in support of the motion contained conflicting accounts of how the accident happened, and failed to eliminate triable issues of fact, including which vehicle entered the other vehicle's lane prior to the collision (see Merola v. Beaird, 185 A.D.3d 679, 680, 124 N.Y.S.3d 873 ; Charlery v. Allied Tr. Corp., 163 A.D.3d at 915, 81 N.Y.S.3d 523 ).

Contrary to the defendants’ contention, the fact that the plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner does not conclusively establish that she was negligent (see Ando v. Woodberry, 8 N.Y.2d 165, 171, 203 N.Y.S.2d 74, 168 N.E.2d 520 ; Guarino v. Woodworth, 204 A.D.2d 391, 392, 611 N.Y.S.2d 638 ). "It is well settled that a person who pleads...