Wynter v. City of N.Y.

173 A.D.3d 1122

104 N.Y.S.3d 645

Sharon WYNTER, et al., Plaintiffs-Appellants, et al., Plaintiffs,

v.CITY OF NEW YORK, et al., Respondents, Delroy Slater, etc., et al., Defendants-Appellants.

2018–03746

Index No. 100990/14

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

Argued—February 21, 2019

June 19, 2019

Drabkin & Margulies, Mineola, N.Y. (Robert Margulies and Pollack Pollack Isaac & DeCicco [Brian J. Isaac ], of counsel), for plaintiffs-appellants.

Picciano & Scahill, P.C., Bethpage, N.Y. (Andrea E. Ferrucci of counsel), for defendants-appellants.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Elizabeth I. Freedman of counsel), for respondents.

REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs Sharon Wynter and Carolyn Wynter appeal, and the defendants Delroy Slater, as administrator of the estate of Delroy Henry, and Celia Brady separately appeal, from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated February 8, 2018. The order, insofar as appealed from by the plaintiffs Sharon Wynter and Carolyn Wynter, granted that branch of the motion of the defendants City of New York, New York City Fire Department, and Jason Wisniewski which was for summary judgment dismissing the amended complaint insofar as asserted against them. The order, insofar as appealed from by the defendants Delroy Slater, as administrator of the estate of Delroy Henry, and Celia Brady, granted that branch of the motion of the defendants City of New York, New York City Fire Department, and Jason Wisniewski which was for summary judgment dismissing all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants, and the motion of the defendants City of New York, New York City Fire Department, and Jason Wisniewski for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them is denied.

At approximately 12:20 p.m. on November 29, 2013, a New York City Fire Department ambulance operated by the defendant Jason Wisniewski and a vehicle operated by Delroy Henry and owned by the defendant Celia Brady (hereinafter the Henry vehicle) came into contact at the intersection of Narrows Road North and Hylan Boulevard in Staten Island. The plaintiff Sharon Wynter was sitting in the front passenger seat of the Henry vehicle, and her daughter, the plaintiff Carolyn Wynter, was sitting behind her. In June 2014, Sharon Wynter, Carolyn Wynter, and others (hereinafter collectively the plaintiffs) commenced this personal injury action against the City of New York, the New York City Fire Department (hereinafter the Fire Department), Wisniewski, Henry, and Brady. Henry subsequently died for reasons unrelated to the accident. In November 2015, the plaintiffs filed an amended summons and amended complaint against the City, the Fire Department, Wisniewski, Brady, and Delroy Slater, as administrator of Henry's estate.

After discovery, the City, the Fire Department, and Wisniewski (hereinafter collectively the municipal defendants) moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them. In an order dated February 8, 2018, the Supreme Court granted the motion. Sharon Wynter and Carolyn Wynter (hereinafter together the Wynter plaintiffs) appeal from so much of the order as granted that branch of the municipal defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against them. Slater and Brady separately appeal from so much of the order as granted that branch of the municipal defendants' motion which was for summary judgment dismissing all cross claims insofar as asserted against them.

A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law (see Napolitano v. Sanderson , 167 A.D.3d 1024, 88 N.Y.S.3d 354 ; Jiang–Hong Chen v. Heart Tr., Inc. , 143 A.D.3d 945, 946, 39 N.Y.S.3d 504 ; Joaquin v. Franco , 116 A.D.3d 1009, 1010, 985 N.Y.S.2d 131 ). Here, in support of their motion, the municipal defendants submitted the transcripts of the deposition testimony of various witnesses, including Wisniewski, his coworker Alan Hurtado, and the Wynter plaintiffs. These submissions provided conflicting evidence as to the facts surrounding the accident and failed to establish, prima facie, the municipal defendants' entitlement to judgment as a matter of law (see Matias v. Bello , 165 A.D.3d 642, 643, 84 N.Y.S.3d 551 ). Specifically, the municipal defendants failed to eliminate all...