[*1]
Figueroa v Elbaum
2011 NY Slip Op 50476(U) [31 Misc 3d 1202(A)]
Decided on March 28, 2011
Supreme Court, Kings County
Rivera, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 28, 2011
Supreme Court, Kings County


Joseph A. Figueroa, Plaintiff(s),

against

Borris Elbaum and The City of New York, Defendant(s)




44923/07



Attorney for Plaintiff Joseph Figueroa

Robert Weiss, Esq.

11 Broadway - Suite 1055

New York, NY 10004

(212) 233-0800

Attorney for City of New York

Tammy A. Wilson, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

150 East 42nd Street

New York, NY 10017-5639

(212) 490-3000

Attorney for Defendant Boris Elbaum

Sherri A. Jayson, Esq.

CUOMO, LLC

9 East 38th Street

New York, NY 10016

(212) 448-9933

Francois A. Rivera, J.



By notice of motion filed on October 5, 2010, under motion sequence number five, defendant, The City of New York ("The City") moves pursuant to CPLR §3212, for an order granting summary judgment on liability in its favor and dismissing plaintiff Joseph A. Figueroa's (Figueroa) complaint. The City also moves pursuant to CPLR §3212, for an order granting summary judgment dismissing co-defendant Boris Elbaum's (Elbaum) cross-claims against it. [*2]Figueroa and Elbaum oppose the motion.

BACKGROUND


On December 7, 2007, Figueroa commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The City joined issue by its answer dated January 25, 2008. Co-defendant Elbaum joined issue by his verified answer dated March 13, 2009. Figueroa's complaint and verified bill of particulars allege that on February 20, 2007, at around 6:40 a.m., Elbaum was driving his 2005 Nissan automobile in the intersection of Neptune Avenue and West 33rd Street, in the County of Kings, City of New York. At that date, time and location, Figueroa was driving a 1996 Lincoln automobile with the permission of its owner, Dusk Airport Services, Inc. Figueroa further claims that as a result of Elbaum's negligent operation of his vehicle and the City's negligence in maintaining the traffic light at that intersection controlling Elbaum's vehicle, Elbaum struck Figueroa's vehicle causing serious physical injury to Figueroa.

MOTION PAPERS


The City's motion papers consist of an affirmation of its counsel and fifteen annexed exhibits labeled A through O. Exhibit A is a copy of the instant summons and complaint. Exhibit B is the City's answer. Exhibit C is Elbaum's verified answer. Exhibit D is plaintiff's verified bill of particulars. Exhibit E is the note of issue. Exhibit F is the uncertified police accident report. Exhibit G is the transcript of plaintiff's 50-h hearing conducted on January 28, 2008. Exhibit H is the deposition transcript of plaintiff conducted on July 22, 2009. Exhibit I is the deposition transcript of Elbaum conducted on October 20, 2009. Exhibit J is plaintiff's Coney Island Hospital report dated February 20, 2007. Exhibit K is the deposition transcript of the City's administrative associate for the New York City Department of Transportation, Sherry Johnson-O'Neal conducted on August 25, 2009. Exhibit L is the City of New York's Bid Proposal and Detail Specification to Petrocelli for traffic signal maintenance for the borough of Brooklyn. Exhibit M is a traffic maintenance log for the period of January 20, 2007 through February 20, 2007. Exhibit N is the deposition transcript of David Ferguson, a non-party witness and agent of Petrocelli Electric. Exhibit O is the individual traffic signal maintenance repair reports for the period of January 21 through February 21, 2007.

Figueroa opposes the summary judgment motion with an affirmation of his counsel and two annexed exhibits labeled A and B. Exhibit A is Figueroa's FOIL request for records associated with the traffic control device located at the intersection of Neptune Avenue and West 33rd Street, Brooklyn, New York. Exhibit B is the individual traffic signal maintenance repair reports for the period of January 21 through February 21, 2007.

Co-Defendant Elbaum opposes the City's summary judgment motion with an affirmation of counsel, and three annexed exhibits labeled A through C. Exhibit A is [*3]Elbaum's request for traffic maintenance report records and logs. Exhibit B is the traffic signal maintenance repair reports for the period of January 21, 2007 through February 21, 2007. Exhibit C is Elbaum's affidavit of service.

The City replied to Figueroa's opposition papers with an affirmation of their counsel.

LAW AND APPLICATION


A motion for summary judgment may be granted only when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v. Suffolk County Dept. of Public Works, 65 AD3d 676 [2nd Dept., 2009]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept., 2005]). 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. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v. Bell, 222 AD2d 547 [2nd Dept., 1995]). The Court of Appeals in Andre stated, "summary judgment continues to be a rare event in negligence cases" "It simply means, that when the suit is founded on a claim of negligence, the plaintiff will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances."(Andre v. Pomeroy, 35 NY2d 361, 364-365 [1974]).

Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., 35 NY2d 361, 365 [1974]). In addition, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (Lapides v. State, 57 AD3d 83, 92, [2nd Dept., 2008]). Liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes (Pironti v. Leary, 42 AD3d 487, 489-490, [2nd Dept., 2007). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury (Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 314 [1980]). Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed (Id). If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus (Id; see also, Thompson v. Town of Brookhaven, 34 AD3d 448, 450 [2nd Dept., 2006]).

Vehicle and Traffic Law §1117 requires that an operator of a motor vehicle, when approaching an intersection governed by a traffic-control signal which is out of service or otherwise malfunctioning shall stop in the manner required for stop signs and proceed according to the rules of right of way. A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se(Barbieri v. Vokoun, 72 AD3d 853, 856 [2nd Dept., 2010]; see also, Coogan v. Torrisi, 47 AD3d 669, 671 [2nd Dept., 2008]; and Ciatto v. Lieberman, 266 AD2d 494, 495 [2nd Dept., 1999]). [*4]

The City does not address the issue of its duty to maintain the traffic signal in question, or whether it breached the duty. The City of New York did not claim lack of notice that the traffic control signal in question was malfunctioning. Nor did the City claim that it did not cause or create the condition. Rather, the City restricts it argument to the claim that regardless of its duty or breach thereof, the breach was not the proximate cause of the collision or plaintiff's injuries. To prevail on its motion, the City must show that plaintiff severed the causal nexus between the City's failure to maintain the traffic light and plaintiff's injuries, by showing that plaintiff acted independently of the traffic light.

The City cites to Second Department cases, Rubenfield v. City of New York, 263 AD2d 448 [2nd Dept., 1999] and Minemar v. Kharamova, City of New York, 29 AD3d 750 [2nd Dept., 2006] as being the controlling law on this issue. Rubenfield and Minemar provide that in order to be the proximate cause of an accident resulting from a violation of the Vehicle and Traffic Laws, two elements must be satisfied. First, the individual must be aware that the traffic signal is not working. Second, the individual must not rely on the traffic signal and instead approach the intersection as it were approaching a four way stop sign (See Rubenfield, supra, 263 AD2d at 450; and Minemar, supra 29 AD3d at 751).

The City contends that Figueroa and Elbaum were both aware that the traffic light controlling the intersection was malfunctioning, and that neither Figuroa nor Elbaum relied on the traffic signal in making their decision to enter the intersection. The City contends that Figueroa and Elbaum both violated Vehicle and Traffic Law §1117 and their respective violations were the proximate cause of Figueroa's injuries, and not the City's acts or omissions.

In support of this contention, the City refers to Figueroa's deposition testimony to show that he was aware of the malfunctioning light, that he did not rely on it, and that he depressed his brake upon entering the intersection while looking for oncoming traffic before colliding with co-defendant Elbaum's vehicle.

However, the few deposition statements that plaintiff made regarding the condition of the traffic signal as he approached the intersection do not demonstrate his awareness that the traffic light was actually inoperable. Further, Figueroa's statements do not show that he did not rely on the traffic signal when crossing the intersection. He never acknowledged that he had knowledge that the traffic signal was broken. What he actually stated is that he was driving on West 33rd Street (Figueroa p. 14), about one car length from the intersection (Figueroa p. 50), when he first noticed that the traffic light was flashing green and off (Figueroa p. 16; 50). At that point, he depressed his brake, reduced his speed to 15 miles per hour, and looked for oncoming traffic as he went into the intersection. (Figueroa p. 52-53).

There are no statements by the Figueroa to show how many times the light went in and out, what the he believed the reason to be for the flicker, or why he began depressing his brakes. The facts show that he saw a green light as he was driving down West 33rd Street. Additionally, the City did not provide any proof to negate the possibility that the he believed that the traffic light was still working despite the flicker.

All the City asserts is that Figueroa violated Vehicle & Traffic Law §1117 because he failed to stop before proceeding through the intersection. Vehicle & Traffic Law requires operators to stop before entering an intersection if the traffic signal is out of service or malfunctioning. Before it can be shown that plaintiff violated the Vehicle and Traffic Law, [*5]constituting negligence per se, it must be shown that he had knowledge that the light was out of service or otherwise malfunctioning. Non-reliance on the malfunctioning traffic light by the plaintiff must be proven to show that he acted independently of defendant's negligence in failing to maintain the traffic light. If the plaintiff independently went through the intersection without any reliance on the traffic light, then it could be shown that plaintiff may have been the substantial cause of his injuries, constituting negligence per se. That is not the case here. At best what is shown here is confusion. A green light that flashes as a driver is within one car length from the intersection, does not provide much of an opportunity to determine whether the traffic light is indeed malfunctioning, and inevitably does not provide an opportunity for a driver to decide not to rely upon the traffic signal.

The City has failed to show that Figueroa negligently entered the intersection in violation of the Vehicle and Traffic Law §1117. Nor did the City show that the condition of the traffic light in question was not the proximate cause of plaintiff's injuries. Therefore, the City's motion for summary judgment dismissing plaintiff's complaint is denied.

The City also moves to dismiss co-defendant Elbaum's cross-claims as against it, for contribution and/or indemnification. In the classic indemnification case, the one entitled to indemnity from another had committed no wrong, but by virtue of some relationship with the tortfeasor or obligation imposed by law, was nevertheless held liable to the injured party (D'Ambrosio v. City of New York, 55 NY2d 454, 461 [1982]).

Indemnity is a shifting of culpability among wrongdoers that springs from contract, express or implied, (Rock v. Reed-Prentice Division of Package Machinery Co., 39 NY2d 34, 39,[1976], to prevent a result which is regarded as unjust or unsatisfactory, (Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21, 24 [1985]). Courts will enforce a defendant's right to indemnity if it could be shown that the entire loss should be borne by another. In the absence of an express contractual agreement, implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21, 24, (1985), as the employer of a negligent employee, owner of a motor vehicle operated by a negligent driver, or the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it (Salonia v. Samsol Homes, Inc., 119 AD2d 394, 401 [2nd Dept., 1986]). The courts recognized an implied contract of indemnity in favor of the wrongdoer who has been guilty of passive negligence against one who has been actively negligent (Rock v. Reed-Prentice Division of Package Machinery Co., 39 NY2d 34, 39 [1976]). This passive-active negligence test was difficult for courts to apply therefore (Dole v. Dow Chem. Co., 30 NY2d 143 [1972] expanded the statutory right to contribution leading to the enactment of CPLR §1402.

Contribution is the proportionate sharing of loss by joint tortfeasors and does not require any kind of agreement between or among the wrongdoers (Rosado v. Proctor & Schwartz, Inc., 66 NY2d 21, 24 [1985]). In an action for contribution, ratable or proportional reimbursement is sought ( Rock v. Reed-Prentice Division of Package Machinery Co., 39 NY2d 34, 38 [1976]).

CPLR §1402 provides in pertinent part as follows:
"The amount of contribution to which a person is entitled shall be the excess paid by him over and above his equitable share of the judgment recovered by the injured party; but no person shall be required to contribute an amount greater than [*6]his equitable share. The equitable shares shall be determined in accordance with the relative culpability of each person liable for contribution."


Here, likewise, the City refers to co-defendant Elbaum's deposition statement to show that Elbaum similarly failed to stop before the intersection upon acknowledging the malfunctioning traffic signal. However, the City's motion for summary judgment dismissing Elbaum's cross-claim must be denied as premature. There is no evidence of any express or implied contractual agreement between the City and Elbaum for indemnity and there has been no determination that the City is free of liability for the collision that injured Figueroa.

The City's motion for summary judgment dismissing plaintiff's complaint and dismissing co-defendant Elbaum's cross-claim against it is denied.

The foregoing constitutes the decision and order of this court.

Enter:

J.S.C.