Upon the following papers read on this e-filed motion for leave to reargue: Notice of Motion and supporting papers by plaintiff, dated July 29, 2020; Answering Affidavits and supporting papers by defendants, dated August 19, 2020; and Replying Affidavits and supporting papers by plaintiff, dated September 25, 2020, it is, ORDERED that the motion by plaintiff for leave to reargue defendants’ prior motion and her prior cross-motion for summary judgment, which were decided by order dated May 13, 2020, is granted, and, upon reargument, the both defendants’ motion and plaintiff’s cross-motion are denied. A motion for reargument is addressed to the sound discretion of the court and may be granted where the court in its prior determination overlooked or misapprehended the relevant facts or misapplied a controlling principle of law in reaching its determination (see Mooney v. Vecchio, 305 AD2d 415, 758 NYS2d 506 [2d Dept 2003]). For the reasons that follow, plaintiff’s motion is granted. If a driver successfully demonstrates that he or she lawfully entered an intersection with the expectation that other motorists would properly yield the right-of-way, that party has established a prima facie case of entitlement to judgment (see Simmons v. Canady, 95 AD3d 1201, 1202, 945 NYS2d 138 [2d Dept 2012]; Singh v. Singh, 81 AD3d 807, 808, 916 NYS2d 527 [2d Dept 2011]; Bonilla v. Gutierrez, 81 AD3d 581, 582, 915 NYS2d 634 [2d Dept 2011]), and if the opposing party cannot establish the existence of any material question of fact regarding contributory negligence, summary judgment is then appropriate (see Barbato v. Maloney, 94 AD3d 1028, 1029, 943 NYS2d 204 [2d Dept 2012]; Yelder v. Walters, 64 AD3d 762, 764, 883 NYS2d 290 [2d Dept 2009]; Jaramillo v. Torres, 60 AD3d 734, 735, 875 NYS2d 197 [2d Dept 2009]). Every driver, however, is bound by a duty to see what there is to be seen through the proper use of his or her senses and is negligent in failing to do so (see Cook v. Gomez, 138 AD3d 675 [2d Dept 2016] citing Lu Yuan Yang v. Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2013]; Calderon-Scotti v. Rosenstein, 119 AD3d 722, 989 NYS2d 514 [2d Dept 2014]; Starkman v. City of Long Beach, 106 AD3d 1076, 1078, 965 NYS2d 609 [2d Dept 2013]; Amalfitano v. Rocco, 100 AD3d 939, 940, 954 NYS2d 644 [2d Dept 2012]). Hence, a driver, even a driver who had the right of way, may be found to have been contributorily negligent if he or she failed to use reasonable care and such negligence was a proximate cause of the collision (see Antaki v. Mateo, 100 AD3d 579, 580, 954 NYS2d 540 [2d Dept 2012]; Steiner v. Dincesen, 95 AD3d 877, 878, 943 NYS2d 585 [2d Dept 2012]; Sirot v. Troiano, 66 AD3d 763, 764, 886 NYS2d 504 [2d Dept 2009]). The collision around which this action centers occurred midday on October 24, 2014, at the intersection of Mark Tree Road and Betty Ann Drive in Centereach, in the Town of Brookhaven. In the moments prior to the collision, defendant Carmody, a Town employee, was driving north on Mark Tree Road in a Town-owned 2001 GMC Sierra pick-up truck. The speed limit on Mark Tree Road was 35 miles per hour. Plaintiff’s decedent, Barbara Tenzler, was driving a 1998 Lexus ES 300 four-door sedan westbound on Betty Ann Drive, which terminates at Mark Tree Road and is controlled at that point by a stop sign, the stop line for which is located some 22.5 feet east of the point at which Betty Ann Drive meets Mark Tree Road. As a result of her injuries — injuries to which she subsequently succumbed — Barbara Tenzler was unable to give any account of the events leading up to the collision, but Carmody testified that when he first visualized Tenzler’s Lexus, it was stationary, facing west, at the stop line on Betty Ann Drive. According to Carmody, at that point he was some 60 to 100 feet from Tenzler’s vehicle, driving at no more than 30 miles per hour. Carmody testified that he kept Tenzler’s Lexus under constant observation and that as he entered the intersection, the Lexus “started proceeding into traffic” and “was maybe 15 feet,” or a “lane width,” from his pickup truck “before she pulled into the intersection.” Carmody further testified that he “didn’t have the time” to try to get around the Lexus or even to “turn the wheel,” but he sounded his horn and pushed hard on his brake pedal until the collision occurred. The entire contact, according to Carmody, occurred in the northbound lane of Mark Tree Road — Carmody did not recall Tenzler having gotten any portion of her vehicle into the southbound lane of Mark Tree Road — and both vehicles came to rest there, the pickup truck facing north, the nose of the Lexus facing west and the two vehicles positioned “[k]ind of like a T.” According to Carmody, the pickup truck did not leave any tire marks on the road. He did not take any photographs at the scene of the accident, nor, so far as he was aware, had anyone from the Town done so. Defendants initially moved for summary judgment in their favor contending that Barbara Tenzler’s conduct in entering the intersection from a stop sign controlling her direction of travel without yielding the right away to the approaching Town pick-up truck driven by Carmody and in attempting to execute a left turn when it was not safe to do so constituted negligence per se and was the sole proximate cause of the accident and of Mrs. Tenzler’s resulting injuries (Vehicle and Traffic Law §§ 1141 and 1142; see, e.g., Attl v. Spetler, 137 AD3d 1176, 28 N.Y.S.3d 699 [2nd Dep't 2016]; see generally McPherson v. Chanzeb, 123 AD3d 1098, 999 NYS2d 521 [2d Dept 2014]; Barbato v. Maloney, 94 AD3d 1028, 943 NYS2d 204 [2d Dept 2012], Yelder v. Walters, 64 AD3d 762, 883 NYS2d 290 [2d Dept 2009]; Colpan v. Allied Cent. Ambulette, Inc., 97 AD3d 776, 949 NYS2d 124 [2d Dept 2012]; Vainer v. DiSalvo, 79 AD3d 1023, 914 NYS2d 236 [2d Dept 2010]). In opposition to the defendants’ motion and in support of a cross-motion of her own for summary judgment in her favor with respect to defendants’ liability, plaintiff, the Executrix of Tenzler’s estate, offered, in addition to the same materials defendants had relied upon, a number of photographs of the two damaged vehicles and the affidavit of an accident reconstructionist, Nicholas Bellizzi, P.E., who concluded — based upon, among other things, the extent and physical location of the damage sustained by each of the two vehicles, published “collision crush damage” findings from frontal barrier and side impact crash testing conducted under the auspices, respectively, of the New Car Assessment Program (“NCAP”) and the Insurance Institute of Highway Safety (“IIHS”), Carmody’s deposition testimony, the police accident report and photographs of the site where the accident occurred — that the Town pickup truck, after braking for approximately a half second, was traveling at a speed of at least 40 miles per hour when it drove directly into the driver’s side door of Mrs. Tenzler’s vehicle; that Carmody was distracted or inattentive as he approached the intersection; and that had Carmody been “alert and attentive and…reacted in a reasonable amount of time under the circumstances,” he would have had sufficient time and distance to reduce the speed of the pickup truck sufficiently so that the Tenzler vehicle would have completed its turn before the Town’s pickup crossed its path of travel, thereby avoiding the collision. Among other things, Bellizzi determined that it would have taken approximately four seconds for Mrs. Tenzler’s Lexus to travel from the stop line on Betty Ann Drive — where it was stopped when, according to his testimony, Carmody first observed it, to the point of impact, and that after taking into account a driver Reaction Perception Time (“PRT”) of 1.5 seconds, 2.5 seconds of braking by Carmody would have allowed the Tenzler vehicle to pass through the intersection without incident. In response to plaintiff’s contentions and Mr. Bellizzi’s affidavit, defendants offered the report of their own accident reconstructionist, Gregory L. Witte, who opined that the collision occurred not with the Town pickup truck perpendicular to Mrs. Tenzler’s Lexus when the two vehicles collided, but at an “oblique” or “steep” angle of approximately 49 or 49.4 degrees, after Mrs. Tenzler had traveled over 44 feet from the stop line and had begun moving her automobile onto southbound Mark Tree Road, such that the velocity of the Lexus contributed to the force of the collision. Based upon his opinion of how the collision occurred and his assessment of the physical damage sustained by each of the vehicles, Mr. Witte opined that at the moment of impact, the defendants’ pick-up truck was moving at about 19 miles per hour and the Lexus at between 14 and 19.9 miles per hour. Using what he described as “documented acceleration ranges of 4.83 — 9.7 fps,” Witte estimated that between 3.01 and 4.27 had elapsed from the time the Lexus left the stop line on Betty Ann Drive to the location in the intersection — which, again, he calculated was some 44 feet away and partially onto the southbound lane of Mark Tree Road — where it was struck by the northbound Town pickup truck driven by Carmody. Disagreeing with the standard employed by plaintiff’s accident reconstructionist, Bellizzi, to determine Carmody’s Perception Response Time and utilizing, instead, Interactive Driver Response Research (“I.DRR”) in his analysis, Witte concluded that Carmody would “likely experience a PRT of 1.4 seconds to a high of 2.0 seconds for the 85th percentile of operators.” Finding nothing, in his view, to “suggest” that Carmody’s vehicle was traveling more than the 30 miles per hour to which he testified, and applying that speed to his further time, distance and reaction calculations, Witte concluded that Carmody “did not have the distance required to avoid the crash” from the instant when he would have perceived that the Lexus was proceeding into the intersection, opining, that Carmody “could not do anything to avoid the accident due to lack of time he was provided by the encroaching Lexus” and that “Mrs. Tenzler failed to see what was to be seen and caused the crash by entering the intersection when it was not safe to do so and possibly with her vision impaired by sun glare.” As plaintiff’s counsel rightly urges in support of the current motion, although the two accident reconstructionists had differing views about the angle at which the Town pickup truck struck Mrs. Tenzler’s automobile, how far across the intersection Mrs. Tenzler’s automobile had traveled before it was struck by the pickup truck and the speed at which the pickup truck was moving in the moments before the accident and when it collided into the Lexus, Bellizzi and Witte were in directional agreement about the number of seconds it took for the Lexus to travel from the stop line on Betty Ann Drive to the spot in the intersection where the collision occurred. Carmody testified that he first observed Mrs. Tenzler’s Lexus when it was stopped at the stop line, that he kept it under constant observation and that he then saw it begin moving into the intersection. Notwithstanding that he attributed a higher speed to the Town pickup truck, both before and at the moment of impact, and factored a slightly longer PRT into his calculations, Bellizzi opined that Carmody, had he been “alert and attentive and…reacted in a reasonable amount of time under the circumstances,” would have been able to slow the pickup truck sufficiently to permit the Lexus to pass through the intersection without incident. Despite positing facts arguably more favorable to the potential for collision avoidance by Carmody — that is, a slower speed for the pickup truck and a quicker perception and reaction time for Carmody, Witte offered essentially the opposite opinion. “Of course, there may be more than one proximate cause for an injury” (Francis v. New York City Tr. Auth., 295 AD2d 164, 164 [1st Dept 2002]). Thus, although defendants’ initial submission was sufficient, in the first instance, to show a prima facie entitlement to summary judgment in their favor to the extent that it demonstrated that Carmody had the right-of-way at the time of the accident and was entitled to assume that Tenzler would not enter the intersection until she could safely do so (see Lara v. Faulisi, 142 AD3d 1052, 39 NYS3d 172 [2d Dept 2016]; Lilaj v. Ferentinos, 126 AD3d 947, 7 NYS3d 172 [2d Dept 2015]; Figueroa v. KeySpan Corp., 65 Misc 3d 1207(A) [Sup Ct, Suffolk County 2019]), plaintiff’s submission, in particular, Bellizzi’s affidavit, amply demonstrated the existence of issues of fact with respect to the speed of the Town vehicle in the moments leading up to the accident and as to whether Carmody was sufficiently alert and attentive and could have avoided the collision had he reacted more quickly to the movement of Tenzler’s vehicle toward the intersection. Although Witte’s report stated a contrary ultimate conclusion with respect to whether Carmody could have avoided the collision, it essentially agreed with Bellizzi’s calculation of the overall amount of time Carmody would have had to reduce the speed of the pickup truck and thereby avoid the collision, and in any event it did not eliminate the material issues of fact raised by plaintiff. On the contrary, Witte’s report heightened the factual dispute as to whether Carmody was contributorily negligent and as to whether contributory negligence on Carmody’s part was a proximate cause of the accident and of Mrs. Tenzler’s resulting injuries. Where, as here, the facts are in dispute, conflicting inferences may be drawn from the evidence and there are issues of credibility, a motion for summary judgment should be denied (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 AD3d 730, 911 NYS2d 155 [2d Dept 2010]). Accordingly, upon reargument, defendants’ motion for summary judgment in their favor dismissing the complaint and plaintiff’s cross-motion for summary judgment in her favor and against the defendants on the issue of liability are denied. The foregoing constitutes the decision and order of the court. __ FINAL DISPOSITION __XX__ NON-FINAL DISPOSITION Dated: December 7, 2020
