Preview
FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
-----------------------------------------------------------------------x
FILBERTA GREGORIO,
Index 0 8385/17
Plaintiffs,
MEMORANDUM
OF LAW
-against-
MICHAEL LOSCERBO, CITY OF NEWBURGH POLICE
DEPARTMENT, and CITY OF NEWBURGH,
Defendants.
______________--------------------------------------------------------X
PRELIMINARY STATEMENT
Plaintiff, Filberta Gregorio, respectfully submits this memorandum of law in
support of the herein motion for summary judgment under CPLR 3212.
STATEMENT OF FACTS
Plaintiff's affidavit (Exhibit "2") establishes the following facts:
Plaintiff was involved in a motor vehicle accident with a City of Newburgh
Police vehicle on Friday, April 14, 2017, at approximately 1:00 p.m. The accident
happened at the intersection of Broadway and Concord Street in the City of Newburgh. At
the time of the accident she was a pedestrian walking northbound crossing Broadway from
the south west corner of Mill Street and Broadway to the North West corner of Concord
Street and Broadway. When she reached the south west corner of Mill Street and
Broadway, she waited approximately three minutes for the walking man pedestrian
signal light to allow her to proceed.
After she saw the walking man signal light come on, she looked to her left and
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saw that the vehicles proceeding eastbound on Broadway had come to a stop. She then
looked to her right and saw that the vehicles proceeding westbound on Broadway had also
come to a stop. She then waited further as three or four vehicles passed in front of her
making left hand turns from northbound Mill Street to westbound Broadway. She then
looked down Mill Street behind her and saw no vehicles approaching. She began to cross
Broadway walking northbound in the pedestrian crosswalk between the two painted lines
on the roadway. She walked past the two eastbound lanes of Broadway to her left. When
she had just passed the double yellow lines painted in the roadway separating eastbound
and westbound traffic, she was struck from behind and thrown to the pavement on her left
side. She never saw the City of Newburgh police vehicle that struck her until after the
accident because itcame from behind her.
On March 22, 2018, in response to a FOIL request, Defendant, City of Newburgh,
produced a Police Accident Report regarding this incident prepared by Sergeant C. Lahar.
A copy of that report and legend are annexed hereto as Exhibit "3". Officer Lahar,
recorded a statement made by defendant driver, Police Office Michael Loscerbo, acting
within the scope of his duties a police officer. He attributed the following statement to
Loscerbo: "The operator of vehicle 1 states he was making a leftturn onto Broadway and
1"
did not see Pedestrian
Sergeant Lahar also confirms in his report that Plaintiff was struck by the City of
Newburgh vehicle and that Plaintiff was crossing with the signal. (See Accident
"1"
Description/Officer Notes and Box Number 2 marked as describing Pedestrian as
signal"
"crossing with signal")
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DEFENDANT IS NEGLIGENT AS A MATTER OF LAW
The undisputed evidence establishes that plaintiff was struck while walking
within the crosswalk, with the traffic control signal in her favor, after having looked both
ways before crossing. Plaintiff had the right to anticipate that the police vehicle intending
to turn left onto the street that she was crossing would obey New York Vehicle and
Traffic Law Section 1111(a)(1) and grant her the right of way to which she was legally
entitled.
Defendant violated VTL Section 111l(a)(1) when he failed to yield the right of
way to plaintiff who was lawfully within the adjacent crosswalk. [See Vehicle and Traffic
Law Section 1111 l(a)(1) and Barbieri v. Vokoun, 72 A.D. 3d 853, 900 N.Y.S. 2d 315
(2nd
Dept. 2010)]
A violation of a standard of care imposed by the VTL constitutes negligence per
se. Plaintiff has demonstrated prima facie entitlement to summary judgment as a matter
(2nd
of law. [See Cavitch v. Mateo, 58 A.D. 3d 592, 871 N.Y.S. 2d 372 Dept.
2009)(holding pedestrian established her prima facie entitlement to summary judgment
on the issue of liability by submitting evidence that the driver failed to yield the right of
way to her as she proceeded across a roadway in a crosswalk); Voskin v. Lemel, 52 A.D.
(2nd
3d 503, 859 N.Y.S. 2d 489 Dept. 2008); and Sulaiman v. Thomas, 54 A.D. 3d 751,
(2nd
863 N.Y.S. 2d 723 Dept. 2008]
Courts have repeatedly held that a plaintiff struck by a vehicle making a turn can
establish a prima facie showing of entitlement to summary judgment on the issue of
liability by presenting proof that she was hit while walking within a crosswalk, with the
traffic control in her favor, after looking both ways before crossing. This has long been
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the law in the First and Second Departments. [See Perez-Hernandez v. M. Marte Auto
(1st
Corp., 104 A.D. 3d 489, 490, 961 N.Y.S. 2d 384 Dept. 2013); Hines v. New York
(ISt
City Transit Authority, 112 A.D. 3d 528, 529, 977 N.Y.S. 2d 238 Dept. 2013);
(1st
Beamud v. Gray, 45 A.D. 3d 257, 844 N.Y.S. 2d 269 Dept. 2007); Martinez v.
(2nd
Kreychmar, 84 A.D. 3d 1037, 1038, 23 N.Y.S. 2d 648 Dept. 2011); and Kusz v. New
(2nd
York City Transit Authority, 88 A.D. 3d 768, 930 N.Y.S. 2d 892 Dept. 2011)]
It has also long been the law in the Second Department that statements attributed
to drivers in police reports are admissible as admissions. (See Ferrara v. Poranski, 88
(2"d
A.D. 2d 904, 450 N.Y.S. 2d 596 Dept. 1982)(statement attributed to driver in
unsworn police report held to constitute an admission against interest) A police accident
report containing a statement recorded by an officer acting within the scope of his duty is
admissible as the admission of a party. [See Guevara v. Zaharakis, 303 A.D. 2d 555, 756
(2nd
N.Y.S. 2d 465 Dept. 2003; Kemenyash v. McGoey, 306 A.D. 2d 516, 762 N.Y.S. 2d
(2nd (2nd
629 Dept. 2003); Scott v. Kass, 48 A.D. 3d 785, 851 N.Y.S. 2d 649 Dept. 2008);
(2nd
and Jackson v. Trust, 103 A.D. 3d 851, 962 N.Y.S. 2d 267 Dept. 2013)]
Therefore in addition to a negligence per se violation of Vehicle and Traffic Law
Section 1111(a)(1), Defendant Loscerbo also failed to properly use his senses to see and
be aware of that which was there to be seen. i.e.a pedestrian crossing in a crosswalk with
the walk signal. His failure to keep a proper lookout also constitutes negligence. [See
(2nd
Starkman v. Long Beach, 106 A.D. 3d 1076, 965 N.Y.S. 2d 609 Dept. 2013) and
(2nd
Mohammad v. Ning, 72 A.D. 3d 913, 899 N.Y.S. 2d 356 Dept. 2010)]
Defendant cannot offer a non-negligent explanation for this accident. The Court
should grant the motion for summary judgment together with such other and further relief
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that to this court seems just, proper and equitable.
Dated: New York, New York Yours, etc.
May 2, 2018 Pena & Kahn, PLLC
Attorney for Plaintiff
1250 Waters Place, Suite 901
Bronx, New York 10461
(7
By: Hiram Anthony Raldiris, Esq.
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Preview
FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -----------------------------------------------------------------------x FILBERTA GREGORIO, Index 0 8385/17 Plaintiffs, MEMORANDUM OF LAW -against- MICHAEL LOSCERBO, CITY OF NEWBURGH POLICE DEPARTMENT, and CITY OF NEWBURGH, Defendants. ______________--------------------------------------------------------X PRELIMINARY STATEMENT Plaintiff, Filberta Gregorio, respectfully submits this memorandum of law in support of the herein motion for summary judgment under CPLR 3212. STATEMENT OF FACTS Plaintiff's affidavit (Exhibit "2") establishes the following facts: Plaintiff was involved in a motor vehicle accident with a City of Newburgh Police vehicle on Friday, April 14, 2017, at approximately 1:00 p.m. The accident happened at the intersection of Broadway and Concord Street in the City of Newburgh. At the time of the accident she was a pedestrian walking northbound crossing Broadway from the south west corner of Mill Street and Broadway to the North West corner of Concord Street and Broadway. When she reached the south west corner of Mill Street and Broadway, she waited approximately three minutes for the walking man pedestrian signal light to allow her to proceed. After she saw the walking man signal light come on, she looked to her left and 1 1 of 5 FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018 saw that the vehicles proceeding eastbound on Broadway had come to a stop. She then looked to her right and saw that the vehicles proceeding westbound on Broadway had also come to a stop. She then waited further as three or four vehicles passed in front of her making left hand turns from northbound Mill Street to westbound Broadway. She then looked down Mill Street behind her and saw no vehicles approaching. She began to cross Broadway walking northbound in the pedestrian crosswalk between the two painted lines on the roadway. She walked past the two eastbound lanes of Broadway to her left. When she had just passed the double yellow lines painted in the roadway separating eastbound and westbound traffic, she was struck from behind and thrown to the pavement on her left side. She never saw the City of Newburgh police vehicle that struck her until after the accident because itcame from behind her. On March 22, 2018, in response to a FOIL request, Defendant, City of Newburgh, produced a Police Accident Report regarding this incident prepared by Sergeant C. Lahar. A copy of that report and legend are annexed hereto as Exhibit "3". Officer Lahar, recorded a statement made by defendant driver, Police Office Michael Loscerbo, acting within the scope of his duties a police officer. He attributed the following statement to Loscerbo: "The operator of vehicle 1 states he was making a leftturn onto Broadway and 1" did not see Pedestrian Sergeant Lahar also confirms in his report that Plaintiff was struck by the City of Newburgh vehicle and that Plaintiff was crossing with the signal. (See Accident "1" Description/Officer Notes and Box Number 2 marked as describing Pedestrian as signal" "crossing with signal") 2 2 of 5 FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018 DEFENDANT IS NEGLIGENT AS A MATTER OF LAW The undisputed evidence establishes that plaintiff was struck while walking within the crosswalk, with the traffic control signal in her favor, after having looked both ways before crossing. Plaintiff had the right to anticipate that the police vehicle intending to turn left onto the street that she was crossing would obey New York Vehicle and Traffic Law Section 1111(a)(1) and grant her the right of way to which she was legally entitled. Defendant violated VTL Section 111l(a)(1) when he failed to yield the right of way to plaintiff who was lawfully within the adjacent crosswalk. [See Vehicle and Traffic Law Section 1111 l(a)(1) and Barbieri v. Vokoun, 72 A.D. 3d 853, 900 N.Y.S. 2d 315 (2nd Dept. 2010)] A violation of a standard of care imposed by the VTL constitutes negligence per se. Plaintiff has demonstrated prima facie entitlement to summary judgment as a matter (2nd of law. [See Cavitch v. Mateo, 58 A.D. 3d 592, 871 N.Y.S. 2d 372 Dept. 2009)(holding pedestrian established her prima facie entitlement to summary judgment on the issue of liability by submitting evidence that the driver failed to yield the right of way to her as she proceeded across a roadway in a crosswalk); Voskin v. Lemel, 52 A.D. (2nd 3d 503, 859 N.Y.S. 2d 489 Dept. 2008); and Sulaiman v. Thomas, 54 A.D. 3d 751, (2nd 863 N.Y.S. 2d 723 Dept. 2008] Courts have repeatedly held that a plaintiff struck by a vehicle making a turn can establish a prima facie showing of entitlement to summary judgment on the issue of liability by presenting proof that she was hit while walking within a crosswalk, with the traffic control in her favor, after looking both ways before crossing. This has long been 3 3 of 5 FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018 the law in the First and Second Departments. [See Perez-Hernandez v. M. Marte Auto (1st Corp., 104 A.D. 3d 489, 490, 961 N.Y.S. 2d 384 Dept. 2013); Hines v. New York (ISt City Transit Authority, 112 A.D. 3d 528, 529, 977 N.Y.S. 2d 238 Dept. 2013); (1st Beamud v. Gray, 45 A.D. 3d 257, 844 N.Y.S. 2d 269 Dept. 2007); Martinez v. (2nd Kreychmar, 84 A.D. 3d 1037, 1038, 23 N.Y.S. 2d 648 Dept. 2011); and Kusz v. New (2nd York City Transit Authority, 88 A.D. 3d 768, 930 N.Y.S. 2d 892 Dept. 2011)] It has also long been the law in the Second Department that statements attributed to drivers in police reports are admissible as admissions. (See Ferrara v. Poranski, 88 (2"d A.D. 2d 904, 450 N.Y.S. 2d 596 Dept. 1982)(statement attributed to driver in unsworn police report held to constitute an admission against interest) A police accident report containing a statement recorded by an officer acting within the scope of his duty is admissible as the admission of a party. [See Guevara v. Zaharakis, 303 A.D. 2d 555, 756 (2nd N.Y.S. 2d 465 Dept. 2003; Kemenyash v. McGoey, 306 A.D. 2d 516, 762 N.Y.S. 2d (2nd (2nd 629 Dept. 2003); Scott v. Kass, 48 A.D. 3d 785, 851 N.Y.S. 2d 649 Dept. 2008); (2nd and Jackson v. Trust, 103 A.D. 3d 851, 962 N.Y.S. 2d 267 Dept. 2013)] Therefore in addition to a negligence per se violation of Vehicle and Traffic Law Section 1111(a)(1), Defendant Loscerbo also failed to properly use his senses to see and be aware of that which was there to be seen. i.e.a pedestrian crossing in a crosswalk with the walk signal. His failure to keep a proper lookout also constitutes negligence. [See (2nd Starkman v. Long Beach, 106 A.D. 3d 1076, 965 N.Y.S. 2d 609 Dept. 2013) and (2nd Mohammad v. Ning, 72 A.D. 3d 913, 899 N.Y.S. 2d 356 Dept. 2010)] Defendant cannot offer a non-negligent explanation for this accident. The Court should grant the motion for summary judgment together with such other and further relief 4 4 of 5 FILED: ORANGE COUNTY CLERK 05/02/2018 04:55 PM INDEX NO. EF008385-2017 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/02/2018 that to this court seems just, proper and equitable. Dated: New York, New York Yours, etc. May 2, 2018 Pena & Kahn, PLLC Attorney for Plaintiff 1250 Waters Place, Suite 901 Bronx, New York 10461 (7 By: Hiram Anthony Raldiris, Esq. 5 5 of 5