G. F. v. Epstein

210 N.Y.S.3d 200

226 A.D.3d 870

G. F., etc., et al., plaintiffs-respondents,

v.David EPSTEIN, defendant-Respondent,Village of Kiryas Joel, appellant, et al., defendants.

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

Argued—December 11, 2023

April 17, 2024

O’Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, NY (Montgomery L. Effinger and Heather Haralambides of counsel), for appellant.

Schwartz, Goldstone & Campisi, LLP, New York, NY (Kevin J. Ryan of counsel), for plaintiffs-respondents.

Maynard, O’Connor, Smith & Catalinotto, LLP, Albany, NY (Bridget M. Schultz of counsel), for defendant-respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Village of Kiryas Joel appeals from two orders of the Supreme Court, Orange County (Catherine M. Bartlett, J.), both dated December 9, 2021. The first order granted the motion of the defendant David Epstein for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him. The second order denied the motion of the defendant Village of Kiryas Joel for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.

ORDERED that the appeal from so much of the first order as granted those branches of the motion of the defendant David Epstein which were for summary judgment dismissing the complaint insofar as asserted against him and the cross-claims asserted against him by the defendants County of Orange and the Town of Monroe, is dismissed, as the defendant Village of Kiryas Joel is not aggrieved by those portions of the order (see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132); and it is further, ORDERED that the first order is affirmed insofar as reviewed; and it is further,

ORDERED that the second order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs and the defendant David Epstein appearing separately and filing separate briefs.

On April 23, 2018, the infant plaintiff, a pedestrian attempting to cross Mountain Road in the defendant Village of Kiryas Joel, was struck by a vehicle owned and operated by the defendant David Epstein. There was no crosswalk at or near the location of the accident.

The infant plaintiff, by her father, and her father suing derivatively, commenced this action, inter alia, to recover damages for personal injuries. The plaintiffs alleged that Epstein was negligent in the operation of his vehicle and in failing to keep a proper lookout, and that the Village was negligent in, among other things, roadway construction, design, and configuration. In his answer, Epstein asserted a cross-claim against the Village for indemnification and/or contribution. In its answer, the Village asserted a cross-claim against Epstein for common-law indemnification.

After the completion of discovery, Epstein and the Village separately moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against each of them. By order dated December 9, 2021, the Supreme Court granted Epstein’s motion. In a second order dated December 9, 2021, the court denied the Village’s motion. The Village appeals from both orders.

[1] Contrary to the Village’s contention, in the first order, the Supreme Court properly granted that branch of Epstein’s motion which was for summary judgment dismissing the Village’s cross-claim for common-law indemnification insofar as asserted against him. A party moving for summary judgment dismissing a commonlaw indemnification claim can meet his or her prima facie burden by establishing that the accident was not due to his or her own negligence (see Calle v. 16th Ave. Grocery, Inc., 219 A.D.3d 450, 452, 194 N.Y.S.3d 116; Zong Wang Yang v. City of New York, 207 A.D.3d 791, 796, 173 N.Y.S.3d 36).

[2] Here, Epstein established his prima facie entitlement to judgment as a matter of law by demonstrating that, while traveling on a roadway free from any traffic control device, the infant plaintiff abruptly stepped into the path of Epstein’s vehicle from between two vehicles that were stopped in the opposite lane of travel, the infant plaintiff was not in a crosswalk, and Epstein was free from fault despite allegations that he failed to avoid the collision (see Pixtun–Suret v. Gevinski, 165 A.D.3d 715, 715, 84 N.Y.S.3d 260; Balliet v. North Amityville Fire Dept., 133 A.D.3d 559, 560-561, 19 N.Y.S.3d 77; Galo v. Cunningham, 106 A.D.3d 865, 866, 965 N.Y.S.2d 571).

In opposition to Epstein’s prima facie showing, the Village failed to raise a triable issue of fact as to whether Epstein was at fault in the happening of the accident (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Pixtun-Suret v. Gevinski, 165 A.D.3d at 715, 84 N.Y.S.3d 260).

[3, 4] In the second order, the Supreme Court properly concluded that the Village failed to establish its prima facie entitlement to judgment as a matter of law. "[A] municipality owes to the public the absolute [and nondelegable] duty of keeping its streets in a reasonably safe condition" (Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [alterations and internal quotation marks omitted]; see Riddell v. City of New York, 209 A.D.3d 891, 892, 177 N.Y.S.3d 95). If a municipality conducts an analysis of a dangerous roadway condition...