Kyle Ann Soto v Lorenzo Mastropieri
Categories
Attorneys and Parties
Brief Summary
Personal injury and motor vehicle negligence involving a pedestrian struck by a turning vehicle, including whether the driver was free from fault as a matter of law and whether an untimely deposition errata sheet could be considered.
The Supreme Court, Nassau County, granted the defendant summary judgment dismissing the complaint and denied the plaintiff's cross-motion for summary judgment on liability and to strike the defendant's errata sheet.
The Appellate Division reversed the judgment, denied the defendant's motion for summary judgment, granted the plaintiff's cross-motion on liability, struck the errata sheet, and reinstated the complaint.
The defendant failed to establish prima facie that he was not negligent because he admitted he never saw the plaintiff before impact, even though she was already in the roadway and he was moving slowly. The plaintiff, by contrast, established that the defendant failed to see what he should have seen and that this failure was a proximate cause of the accident. The errata sheet was also untimely under CPLR 3116(a) [if a witness fails to sign and return a deposition within sixty days, it may be used as though signed, and no changes may be made more than sixty days after submission].
Background
The plaintiff alleged that she was injured when the defendant's vehicle struck her as she was walking across Merrick Road in Lynbrook. The defendant had been waiting at an intersection and then turned left onto the four-lane road. The plaintiff testified that she saw the defendant waiting to turn and that there were no other vehicles nearby. The defendant testified at deposition that he saw no cars or pedestrians, was traveling about two to three miles per hour with his foot on the brake, and did not see the plaintiff even for a split second before impact.
Lower Court Decision
The lower court granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross-motion seeking summary judgment on liability and to strike the defendant's errata sheet, after which judgment was entered in favor of the defendant.
Appellate Division Reversal
The Appellate Division dismissed the direct appeal from the intermediate order because the right to appeal from that order terminated upon entry of judgment, but reviewed those issues on the appeal from the judgment. It reversed the judgment, held that the defendant's errata sheet should have been stricken as untimely under CPLR 3116(a) [if a witness fails to sign and return a deposition within sixty days, it may be used as though signed, and no changes may be made more than sixty days after submission], found that the defendant failed to show freedom from negligence as a matter of law, and held that the plaintiff established entitlement to summary judgment on liability. The complaint was reinstated.
Legal Significance
This decision reinforces that a driver seeking summary judgment in a negligence action must establish freedom from fault, including freedom from comparative fault, and that a driver may be found negligent for failing to see what should have been seen through the proper use of the senses. It also confirms strict enforcement of CPLR 3116(a) [if a witness fails to sign and return a deposition within sixty days, it may be used as though signed, and no changes may be made more than sixty days after submission] when a party attempts to submit a late deposition errata sheet. The court also reiterated that a plaintiff moving for summary judgment on liability need not prove the absence of the plaintiff's own comparative fault.
A driver who turns into a pedestrian and admits never seeing the pedestrian may not obtain summary judgment by claiming lack of fault, and a plaintiff can win summary judgment on liability without disproving comparative negligence. Late deposition corrections served beyond the sixty-day limit are subject to being stricken.