In his complaint, received by the Court on May 6, 2022, the plaintiff seeks $5,000.00 for damages to his vehicle, a 2010 Mazda 3, as a result of a collision he alleges was caused by the defendant, Nora Kelly. The plaintiff's vehicle was being driven by Inna Opatska at the time of the accident. According to the complaint, Ms. Opatska is the fiancé of the plaintiff's son, John Crossman Jr., who was in the back seat with their one-year-old son when the collision took place. The complaint reads that:

(The defendant) applied her right turn signal and brakes indicating to make a right turn into CK's Car Wash. (The defendant) pulled onto the right shoulder of the road, further indicating her intention of travel. Ms. Opatska proceeded to travel straight on Old Vestal Road when (the defendant) pulled back onto the roadway and into the side of the plaintiff's car pushing the vehicle and passengers into the oncoming lane.

While the hearing demonstrated that the damages to plaintiff's car could have been processed through his insurer, he did not want to have his insurance premiums affected by such a claim. The plaintiff otherwise alleges that he has been unable to make doctor appointments for his medical condition due to the operability of his vehicle and that, even though she is not listed as a plaintiff, Ms. Opatska has been left traumatized. Ms. Opatska, Mr. Crossman, Jr., and the plaintiff testified on behalf of the plaintiff's case.

Ms. Zehe, appearing for Ms. Kelly, did note that the defendant's insurer took the case to arbitration, and described her client's position as follows:

That Ms. Kelly was driving down Vestal Road, which was divided by a double yellow line; she briefly passed the road on her left where she should have turned; she pulled to the right and then back into the road. It was then that the driver of the plaintiff's vehicle passed her on the left. Ms. Kelly never left her lane of travel.

Ms. Opatska was the plaintiff's first witness. She testified that on December 11, 2021, [*2]she was driving the plaintiff's vehicle, a 2010 Mazda 3 - a compact sedan - on Old Vestal Road, which is a two-lane roadway divided by a double yellow line, on her way home to have lunch after shopping at Walmart. It was her testimony that, as she was trailing the defendant's vehicle, the defendant pulled to the right and then back into the road as Opatska was passing to the left of the defendant's vehicle when the defendant's vehicle collided into the vehicle she was driving. According to Opatska, she never left her lane of travel.

She further explained that the defendant's vehicle signaled to make a right turn, finished the right turn, and that Opatska started to make her pass, when the defendant "just turned" into her, noting that she had her young child and fiancé, Mr. Crossman, Jr., in the back seat.

On cross, she testified that the weather was "nice" and that the road was "dry" and that it was daytime. She denied being in a rush, testified that she was driving 30 MPH in the 30 MPH speed zone, and responded that she has been driving for almost 7 years. She acknowledged that the road was marked with two yellow lines.

She further testified on cross that she was not behind the defendant for very long, that the defendant had pulled in front of her at a traffic light, that she was about 20 feet behind the defendant when the defendant began to make her turn, and that she was being especially cautious while driving with her baby in the back seat. Opatska further noted that the defendant did not put on her blinker until being about five (5) feet shy of the car wash parking lot.

As to the defendant's actions, Opatska further testified on cross that the defendant put on her signal and turned right into the car wash. It was at that point that Opatska slowed down until she deemed it safe to pass. At that point, the defendant's vehicle pulled right into her.

Opatska denied leaving her lane of travel until the defendant's car pushed Opatska into the lane for oncoming traffic. In this regard, she noted that there was a lot of damage to the car she was driving, in particular to its front and passenger side areas. When asked the exact position of her driver side tires when the collision took place, Opatska stated that her left tires touched between the 2 yellow lines.

The plaintiff's son, John Crossman, Jr., testified that he was sitting in the back seat of the vehicle driven by Opatska, when the accident took place. According to Crossman, Jr., Opatska was "a car or 2 at most" behind the defendant, when the defendant put on her right turn signal and pulled into the car wash, noting that she was completely off the road. He otherwise testified that Opatska never crossed the yellow lines and that Optaska and he were pushed into oncoming traffic when the defendant's vehicle collided with them.

On cross, Crossman, Jr. initially denied seeing the defendant's vehicle until it was turning into he and Opatska. He also denied seeing the defendant put on any turn signal. But he proceeded to testify that he observed the defendant's car pull off the roadway and then back into their car as they were passing the defendant. Crossman, Jr. further claimed that the defendant pulled off the road for approximately five (5) seconds before pulling back into the roadway, and that her car was completely over the white fog line with both sets of tires before returning to the roadway and colliding with their vehicle. The witness was familiar with the road and confirmed the double yellow line in the middle of the road. The witness further noted that the child was taking a nap prior to the collision.

Crossman, Jr. explained that the impact occurred towards the front of each vehicle and damaged the front quarter panels of each vehicle, but that the Crossman vehicle had the entire passenger side of the vehicle damaged as it continued forward. He commented that the defendant's vehicle came to a stop after turning into them thereby minimizing the area of damage [*3]to the defendant's vehicle.

Crossman, Jr. otherwise remarked during cross that it was brisk, but not excessively cold out and otherwise dry, reaffirming that their vehicle never crossed the double yellow lines from his perspective from the back seat. He further noted that he and Opatska may have been heading to pick up his father, the plaintiff, at the hospital before heading home.

The plaintiff, John Crossman, testified last and had little to add, except that the car is not fixed, because he did not want to incur a surcharge or penalty on his insurance for something that he believed was the defendant's fault. The plaintiff otherwise introduced three (3) estimates, all of which were received, without objection, in the amount of $3,626.26, $3848.14, and $5,561.87. See, Exhibits, P-6, P-7, P-8.

Ms. Kelly, who lives in Afton, testified that she was driving from Lowes in Vestal and heading to another store, while Christmas shopping with her mother, when the accident occurred. She testified that it was a beautiful day out and that the roads were dry. She was driving a 2017 Jeep.

She testified that she made a right onto Old Vestal Road, a two-lane roadway, with a 30 MPH speed limit. While travelling, she realized she made an error and wanted to turn around. She testified that she turned her right signal on to make a U-turn in a parking lot of a car-wash business, but upon realizing that there was an area to the left to turn around, immediately put on her left blinker and, seeing nobody in the oncoming land, proceeded to turn to the left before the impact with the plaintiff's vehicle occurred.

Curiously, Ms. Kelly testified that she pushed the blinker down to make a left turn "as quick as it went up" to make a right hand turn, but testified that this took about 3 seconds to accomplish. In so doing she denied that her vehicle ever left her lane of travel prior to turning to the left, testifying that she never moved to the right at all. In so doing, she denied ever seeing or being cognizant of the plaintiff's car before impact with the driver's side of her vehicle. She testified that she was slowing down prior to turning and was likely travelling around 25 MPH at the time of the collision.

As to the damage to her vehicle, she testified that it was limited to the driver side and that there was no damage to the rear, front, or passenger side of her vehicle. After the collision, Ms. Kelly explained that she looked at the other vehicle, noticing the damage to its front passenger side. She spoke with Crossman, Jr., who was calling the police, and then spoke with Ms. Opatska to make sure everyone was safe, before speaking with the police officer.

She testified that she spoke with the police officer and explained what happened and that it was the same thing she stated in court. When asked about statements in the police report that were not consistent with her testimony (that she started to turn right before changing her mind and turning to the left, and that she side-swiped the plaintiff's vehicle), Ms. Kelly, sounding frustrated, denied the versions that were in the police report, noting that she did not "believe" that is what she told the police officer. She further elaborated that she did not make a right turn into the carwash, though she thought about it for 2 seconds before changing her mind. She otherwise testified that, following the collision, Crossman, Jr. commented that "my dad's going to kill me."

Both parties introduced several pictures of the vehicles following the collision, along with an aerial view of the accident location. All of the pictures were received without objection, [*4]though only the plaintiff's were technically received as the defendant offered the same pictures. See, P-1, P-2, P-3. The pictures reflect damage to both parties' vehicles, which appeared to be generally consistent with the testimony presented regarding the collision. On the passenger side of the plaintiff's vehicle, the damage extends from the hood and bumper, with most of the damage appearing to be to the front passenger side quarter panel of the vehicle. There is less serious damage noted along the rear quarter panel. There are also some minor scrapes to the passenger rear door and minor impact along the passenger side of the vehicle.

The defendant's vehicle included similar damage to the driver side quarter panel, which began further back than on the plaintiff's vehicle, so did not appear to include damage to the hood and bumper. There was also damage along the rest of the driver side of the vehicle, stopping around the front portion of the rear wheel well.

In small claims cases, the plaintiff bears the burden of proving a claim by a preponderance of the evidence. The court has the obligation to apply the facts to the relevant law, keeping in mind the statutory mandate of substantial justice (UCCA §1804).

Pertinent Vehicle and Traffic laws are as follows:

(a) No person shall . . . turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.

(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.

(c) No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

(d) The signals provided for in section eleven hundred sixty-four shall be used to indicate an intention to turn, change lanes. . .

No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless authorized by the provisions of this chapter and unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the operation of any vehicle approaching from the opposite direction or any vehicle overtaken

(a) When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings

(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;

2. When overtaking or passing bicyclists, pedestrians, animals or obstructions on the right half of the roadway;

3. When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard . . .

(b) In addition, upon all roadways, any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

While "small claims matters are not bound by the rules of evidence, a determination may not be based solely on hearsay." Rowe v. Silver & Gold Expressions, 968 NYS2d 202 (3 Dept. 2013) (citation omitted). "Even at Small Claims, with its relaxed rules of procedure and evidence, the fundamental right to confront a witness by cross-examination must be preserved." Falker v. Chrysler Corp., 119 Misc 2d 375, 378 (Civ. Ct. 1983) (citation omitted).

In order to sustain his burden of proof, the plaintiff must demonstrate that the defendant was to some degree negligent and therefore at fault in causing the accident. CPLR §1411. In this case, I find that both parties are at fault, but to different degrees.

The Court was troubled by some of Ms. Kelly's testimony. She steadfastly claimed that, after signaling to make a right turn upon realizing that she was heading in the wrong direction, she never moved towards the right at all. Instead, she testified that she immediately changed her blinker direction from right to left, while also claiming that three (3) seconds transpired to do this. When confronted with statements attributed to her from the police report, Ms. Kelly adamantly claimed that the officer must have miscommunicated what she actually stated to the officer, continually denying that she began to turn right into the car wash before turning left and colliding into the plaintiff's car.

If Ms. Kelly's initial testimony, that she turned the left blinker on as quick as she turned on the right one, then she failed to have the blinker on for the requisite 100 feet prior to making a turn and would have made a very abrupt movement. See, V & T §1163.If she did, in fact, have the right blinker on for about three (3) seconds, I do not find it credible that she did not move at all to the right before changing her mind. See, DiPalma v. State, 936 NYS2d 464, 465 (4 Dept. 2011).

The Court also notes Ms. Kelly's acknowledgement that she did not observe the vehicle that was travelling behind her, a responsibility that belonged to her. See, V & T §1163(a). The Court's impression of Ms. Kelly's testimony and specifically her responses to the statements attributable to her in the police report is that the defendant was making a bold attempt to avoid [*5]liability for her actions and was aware of the testimony that would likely shield her from such liability. Notably, following the Court's inquiry as to her attributed statement in the police report that she side-swiped the plaintiff's vehicle, she methodically stated what sounded like a canned response: "I'm going straight; and I'm making a left hand turn and they break the double yellow and side swipe the driver's side of my car."

Ms. Opatka, on the other hand, testified very consistently about the facts surrounding the collision between the two vehicles. She was in the best position to observe Ms. Kelly's actions and the movement of Ms. Kelly's vehicle. Ms. Opatka is also the witness who most likely has the least to benefit by her testimony. In that regard, Ms. Opatka testified that Ms. Kelly put on her blinker about 5 feet prior to the car wash before completing her turn into the parking lot before pulling back into the road as Ms. Opatka was passing by the defendant. Ms. Opatka acknowledged that her tires touched, but did not cross the yellow lines. She otherwise confirmed that she was driving particularly cautious as her young child was in the back seat. I did not find any inconsistencies in Ms. Optaka's testimony.

Mr. Crossman, Jr., who was sequestered during Ms. Opatka's testimony, was less credible and did not have the same perspective as Ms. Optatka, as he was in the back seat with the child. His testimony corroborated that of Ms. Opatka, but with an apparent effort akin to Ms. Kelly, was fashioned in an effort to preclude any liability on the part of Ms. Opatka. One example of this is his testimony that the defendant pulled off the road for approximately five (5) seconds before pulling back into the roadway. I believe this is a notable exaggeration. He also contradicted himself during his testimony. On his direct, he testified to observing all of the movements of the defendant's vehicle before the collision and then testified on cross that he did not see the defendant's vehicle until it was turning into him. Perhaps he was simply nervous, as further examination revealed a more consistent version of what he stated on his direct, though he remained inconsistent about seeing the defendant's blinker signal. See, 936 NYS2d 465

Crossman, Jr. additionally testified that Ms. Kelly's car was completely over the white fog line with both sets of tires before returning to the roadway and colliding with their vehicle. While this was essentially consistent with the testimony of Opatka, who testified that Ms. Kelly completed her turn, I do not believe that Crossman, Jr. had enough opportunity or perspective without being gratuitous in his testimony to confirm the location of the tires of Ms. Kelly's vehicle before the collision.

Keeping in mind the concerns with Ms. Kelly's testimony, the Court finds that she was extremely belated in turning on her blinker and that she began to make a right-hand turn to the point of having at least her passenger side tires over the white line and her driver tires very close to the fog line. In that regard, I find that she her car was approximately 90% over the white fog line before she changed course. She then abruptly changed her mind and, without using her mirrors to observe the plaintiff's vehicle behind her and to otherwise ensure that a left hand turn could be made safely, hit her blinker and immediately turned to the left to make what would have been an easier U-turn. With that finding, I do find that Ms. Kelly violated Vehicle and Traffic law, including a failure to properly signal prior to beginning her turn to the right and then her sudden turn to the left (see, V & T §1163); and a failure to use her mirrors to observe the plaintiff's vehicle behind her prior to turning back into the roadway. See, V & T §1163. Her testimony that she was travelling at 25 MPH when the accident occurred further suggests that she was not exercising reasonable caution when attempting to make the turn. See, V & T1163(a).

While I do not find that the plaintiff's vehicle crossed the double yellow line prior to the [*6]collision taking place, I do find that Ms. Opatka should have exercised additional caution in approaching Ms. Kelly's vehicle, arguably a violation of V & T 1129. As my finding is that Ms. Kelly abruptly hit her right turn signal and quickly slowed before commencing her turn to the right and moving almost entirely off her lane of travel, I do not find Ms. Opatka's actions unreasonable in proceeding past Ms. Kelly, so as to avoid a sudden and abrupt stop, especially in light of her child in the back seat. In this regard, Ms. Kelly's vehicle essentially became a sudden obstruction in the road before turning back into the lane. See, V & T §1120(a)(3). With this, the Court finds that "(t)here (is) sufficient evidence (upon which to) conclude that (Ms. Kelly) failed to use (her) turn signal (in an appropriate and timely fashion and) did not observe plaintiff's vehicle (which was) attempting to pass . . ." Van Loo v. Tompkins County, 321 NYS2d 15 (3d Dept. 1971). And the damage to the vehicles from the collision present nothing from the Court's perspective to contradict this finding.

Finding Ms. Kelly negligent and at fault in her actions, the Court also finds contributory fault by Ms. Opatka and must therefore decide the percentage of fault attributable to each party. See, CPLR §1411. Based upon the facts presented before the Court, I find that Ms. Kelly was 80% at fault for her actions, and that Ms. Opatka was 20% at fault. The court further notes that the three (3) estimates provided to repair plaintiff's vehicle ($3,626.26, $3848.14, and $5,561.87) averaged out to be $4345.42. However, as two of the estimates were very comparable, the Court, in keeping with its mandate of achieving "substantial justice" in mind, finds that a fair cost to repair plaintiff's vehicle is $3750.00 and that the plaintiff is entitled to 80% of that cost. There was no evidence of any costs, expenses, or otherwise associated with plaintiff's claim regarding transportation for his medical appointments, so the Court cannot even consider any damages in that regard.

For all these reasons, the Court finds that the plaintiff is entitled to judgment in the amount 80% of $3750.00, the amount being $3000.00.

Plaintiffs are awarded Judgment in the amount of $3000.00, plus court costs. The foregoing constitutes the Decision and Order of the Court.