Assume your case involves an accident which occurred when the defendant driver without warning, pulled abruptly out of a parking spot and struck the side of plaintiff’s vehicle.  If there are no true factual disputes as to the accident scenario, a determination of liability may be made by the court as a matter of law.  The defendant driver may be solely responsible for the accident if he entered the roadway without looking to check for oncoming traffic.  Moreover, if he claims to have checked for traffic, then he is responsible for not seeing it and proceeding into the roadway.  Either way, the liability scenario is bad for the defendant and one may argue there was nothing plaintiff could have done to avoid this collision, particularly if she had already driven past the defendant when he turned his car into the middle or rear portion of her vehicle.  Plaintiff’s own actions, one may argue, were not a factor in the happening of this accident and summary judgment should be granted against the defendants on the issue of liability. 

In the seminal case of Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability.  In Pomeroy, the defendant was driving in heavy traffic, looked away from the road to get something out of her purse and crashed into the car in front of her, injuring its passenger.  The lower courts denied the plaintiff passenger’s motion for summary judgment. In reversing the denial of summary judgment, the Court of Appeals held:

“Since it [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18).  But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims properly adjudicated.”

 Id., 362 N.Y.S.2d at 133 [emphasis added].

            In the above scenario, there is likewise no genuine issue as to the negligence of the defendant driver.  He pulled his car directly into oncoming traffic without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements.  See, VTL ¶ 1162 (“No person shall move a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety.”)  [emphasis added].   Furthermore, drivers also have a common law duty to see “that which ought to be seen”.  See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2^nd Dep’t 1986).  Failure to do so is negligence as a matter of law.  See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2^nd Dep’t 2002).  It is clear that the defendant’s negligent actions were the sole and direct cause of the instant action.  

            In Calandra v. Dishotsky, 244 A.D.2d 376 (2^nd Dep’t 1997), a case on point, the defendant driver also pulled out of a parking spot and into a lane of moving traffic, striking plaintiff’s vehicle.  The plaintiff therein moved for partial summary judgment on the issue of liability, which the trial court granted and the Appellate Division upheld.  Id.  The Court found that the defendant driver, under those factual circumstances, could not “create a triable issue of fact as to liability”.  Id. at 377.  See, also, White v. Gooding, 21 A.D.3d 485 (2^nd Dep’t 2005) (summary judgment appropriate where defendant driver pulled out into a lane of traffic without first ascertaining the traffic conditions and struck the plaintiff; thus defendant could not present a triable issue of fact despite her unsupported allegations that plaintiff could have taken some “unspecified action to avoid the accident or that he somehow contributed to its cause”); Irwin v. Mucha, 154 A.D.2d 895 (4^th Dep’t 1989) (plaintiff entitled to summary judgment on issue of liability where defendant driver moved his car forward when it was not safe to do so in violation of VTL ¶1162, and thus struck plaintiff). 

            Moreover, there is no valid argument to be made that plaintiff shared any comparative fault in the accident, particularly if plaintiff had already driven her vehicle past the defendant when he pulled out of a parking spot and struck the rear portion of her vehicle.  It is clear that a driver with the right of way is permitted to presume that other drivers will obey traffic laws that require them to yield and does not have a duty anticipate their negligent actions.  See, e.g., Perez v. Brux Cab Corp., 251 A.D.2d 157 (1^st Dep’t 1998).  Plaintiff had no opportunity to avoid the collision.  As such, plaintiff is entitled to partial summary judgment as a matter of law on the issue of liability as against the defendants.  Moreover, the Court should not permit defendant to raise speculative arguments as to how plaintiff might have avoided the accident wholly caused by the defendant.  See, e.g., Zuckerman v. City of New York, 427 N.Y.S.2d 595, 562 (1980) (mere “expressions of hope or unsubstantiated allegations” are insufficient to defeat a motion for summary judgment).

Based upon the foregoing, one may successfully argue that plaintiff has established liability “sufficiently to warrant the court as a matter of law” to direct judgment in her favor.  See, CPLR 3212[b]; see, also, e.g., Friends of Animals v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067 (1979).  A fair minded court may grant your timely motion on for partial summary judgment on the issue of liability.

It is a clever predicate in that, unlike the allegation of mechanical issues such as a broken tail light, it is nearly impossible to disprove. Moreover, in light  of the current state of the law, once the police have a “valid” reason to pull a defendant over it doesn’t matter if that is the real reason they pulled him over.  That is,  the “pretextual stop” argument has been largely undermined in the wake of Whren v. United States, 517 US 806 (1996), holding in effect that the police officer’s true motive for the car stop is irrelevant so long as he had a valid reason for the stop. This reason may not need to be supported by probable cause in New York, where cases suggest “reasonable suspicion” is sufficient.  People v. Robinson, 97 NY2d 341 (2001).

So, if your client has been pulled over for “failure to signal” what are your tools to fight the constitutionality of the stop? First of all, chances are that he was never issued a ticket, which bears on the credibility of the police officers.  More importantly, and the part that the officers and the DA may fail to focus upon, is that the police must provide testimony which supports the actual statutory infraction.  VTL Section 1163 (turning movements and required signals) states in relevant part that no driver shall:  “turn a vehicle from a direct course or move left or right upon a roadway unless and until such movement can be made with reasonable safety.  No person shall turn any vehicle without giving the proper signal”.  In a recent case, People v. Rice, 810 NYS2d 306 (2006), the Court determined, based upon the above and upon a review of the legislative history, that while a turn may always require a signal, a lane change does not if it can be made safely.  “There was no desire [of the legislature] to add . . . a per se requirement of signaling lane changes as well”.  As such, the law does not “require signaling when a lane change can be made in complete safety without such a signal”.

What is the practical affect of this ruling? In most hearings the police officer will simply state that the defendant was observed making a lane change without signaling. The DA will ordinarily fail to elicit the nature of the roadway, the traffic conditions at the time and how, if at all, the purported lane change endangered other drivers.  IF this latter evidence is not proffered on direct testimony, it is the wise practitioner that does not address it on cross examination lest the officer “fill in the gaps”.  With no evidence that a unspecified “lane change” was made unsafely, any subsequent car stop violates the Fourth Amendment and the New York Constitution and any contraband recovered thereafter should be suppressed as fruit of the poisonous tree.

Lift Foxy’s Ear-Bling In Catfight

BY TONY SCLAFANI

Tuesday, September 14th 2004, 6:48AM

A $250,000 DIAMOND-encrusted earring was snatched from the lovely ear of rapper Foxy Brown when she was attacked inside a rest room at a swanky Manhattan club, cops said.

The raunchy R&B star was knocked around at Show Nightclub in Times Square early Sunday after an argument with a woman cops identified as Tanya Manderson got physical, police sources told the Daily News.

She slugged the 25-year-old Brooklyn-bred diva in the right ear about 12:45 a.m., then yanked off the gaudy earring, the sources said.

Manderson allegedly took the earring and Brown’s purse and ran out of the W. 41st St. club with security guards close behind, the sources said.

She disappeared into a subway station at 42nd St. and Sixth Ave. before hurling the purse onto the tracks and giving the guards the slip. The purse was recovered, but not the earring.

Someone at the club knew Manderson, and cops hauled her into the Midtown South Precinct about 4:30 p.m.

Manderson, 35, of Fort Greene, was charged with robbery, grand larceny and criminal possession of stolen property.

MSG Result: Tanya Manderson’s case dismissed by the grand jury.

Attorney for the defense: Matthew D. Myers