         10-3706-cv
         Gray v. Wackenhut Services, Alutiiq Security & Technology

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
     MUST   SERVE   A   COPY   OF   IT   ON   ANY   PARTY   NOT   REPRESENTED   BY   COUNSEL.

 1           At a stated term of the United States Court of Appeals for the
 2       Second Circuit, held at the Daniel Patrick Moynihan United States
 3       Courthouse, 500 Pearl Street, in the City of New York, on the 15th
 4       day of November, two thousand eleven.

 5       PRESENT:

 6                    ROSEMARY S. POOLER,
 7                    ROBERT D. SACK,
 8                    REENA RAGGI,

 9                                 Circuit Judges.

10       --------------------------------------
11        GWENDOLYN GRAY,

12                             Plaintiff-Appellant,

13                     - v -                                          No. 10-3706-cv

14        WACKENHUT SERVICES, INCORPORATED,
15        ALUTIIQ SECURITY & TECHNOLOGY, LLC,
16        AFOGNAK NATIVE CORPORATION,

17                             Defendants-Cross-
18                             Claimants-Cross-
19                             Defendants-Appellees.

20       --------------------------------------



21       For Appellant:                          GEORGE A. KOHL, II, Finkelstein &
22                                               Partners LLP, Newburgh, NY
 1   For Appellee Wackenhut
 2   Services, Incorporated:        BRENDAN T. FITZPATRICK, Ahmuty,
 3                                  Demers & McManus, Albertson, NY

 4   For Appellees Alutiiq Security
 5   & Technology, LLC, Afognak
 6   Native Corporation:            JOHN SANDERCOCK, Lester Schwab Katz
 7                                  & Dwyer, LLP, New York, NY

 8        Appeal from the United States District Court for the
 9   Southern District of New York (Sweet, J.).

10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
11   DECREED that the judgment of district court be, and it hereby is,
12   AFFIRMED.

13        Petitioner Gray brought a negligence action against

14   Wackenhut Services, Incorporated ("Wackenhut"), Alutiiq Security

15   & Technology, LLC and Afognak Native Corporation (collectively

16   "Alutiiq") after a civilian motor vehicle accident on the grounds

17   of the West Point Military Academy in New York State.   Her claims

18   against both defendants were dismissed by the district court on

19   summary judgment.   We assume the parties’ familiarity with the

20   underlying facts, procedural history, and specification of issues

21   for review.

22        This case arises under the laws of New York, where, "[i]n

23   order to set forth a prima facie case of negligence, the

24   plaintiff’s evidence must establish (1) the existence of a duty

25   on defendant’s part to plaintiff; (2) a breach of this duty; and

26   (3) that such breach was a substantial cause of the resulting

27   injury."   Merino v. New York City Transit Auth., 218 A.D.2d 451,

28   457 (1st Dep’t), aff’d, 89 N.Y.2d 824 (1996).   Where a defendant


                                      2
 1   establishes that a plaintiff's negligence was the sole proximate

 2   cause of an accident, the defendant is not liable to the

 3   plaintiff for damages.    See, e.g., Gallagher v. McCurty, 85

 4   A.D.3d 1109, 1109 (2d Dep't 2011).    Because the defendants have

 5   established as a matter of law that Gray's own negligence was the

 6   sole proximate cause of her accident, this Court need not reach

 7   the issue of duty or breach.

 8         First, there is no evidence in the record that Gray heard

 9   the Wackenhut employee say, "they can go," before she drove her

10   car into a barricade.    Gray did not testify at her deposition

11   either that she heard the Wackenhut employee tell her she could

12   drive forward, or that her passenger, who heard it, repeated the

13   employee's instruction to "go" so that Gray might have acted upon

14   it.   Summary judgment is appropriate as to Wackenhut because

15   there is thus no evidence that the Wackenhut employee's actions

16   were a cause of the accident.   Where a plaintiff cannot show that

17   she relied upon the "signal given to her by the defendant's

18   employee," the plaintiff cannot "meet her burden of proving" that

19   the collision was caused by the signal.    Shapiro v. Mangio, 259

20   A.D.2d 692, 692 (2d Dep't 1999) (discussing Valdez v. Bernard,

21   123 A.D.2d 351, 352 (2d Dep't 1986)).

22         Second, although the evidence suggests that an Alutiiq

23   employee may have signaled for Gray to proceed, and told her to

24   "go" or that she was "good to go," that creates no genuine


                                       3
 1   dispute of material fact to be tried.    As the district court

 2   concluded, the barrier Gray drove into had to have been visible

 3   to her in light of the damage caused by the barrier to the top of

 4   the car's grill.    "A driver is required to see that which through

 5   proper use of his or her senses he or she should have

 6   seen . . . ."     Rahaman v. Adodeledhman, 64 A.D.3d 552, 553 (2d

 7   Dep't 2009).    Under New York law, "[n]o person shall move a

 8   vehicle which is stopped, standing, or parked unless and until

 9   such movement can be made with reasonable safety."    N.Y. Veh. &

10   Traf. Law § 1162.    A violation of that law constitutes negligence

11   per se.     See Elliott v. City of New York, 95 N.Y.2d 730, 734

12   (2001).

13        As the district court noted, New York courts have not been

14   reluctant to grant summary judgment where the record reflected

15   that one party's negligence was the sole proximate cause of an

16   accident.     See, e.g., Groboski v. Godfroy, 74 A.D.3d 1524, 1525

17   (3d Dep't 2010) (affirming grant of summary judgment for

18   defendant who hit plaintiff's car broadside because plaintiff

19   failed to yield the right-of-way); Stevens v. Zukowski, 55 A.D.3d

20   1400, 1401 (4th Dep't 2008) (affirming grant of summary judgment

21   to plaintiff who hit a car with his motorcycle after car pulled

22   out suddenly in front of him); Garnsey v. Bujanowski, 13 A.D.3d

23   857, 857 (3d Dep't 2004) (affirming summary judgment for

24   defendant who struck an all-terrain vehicle causing a fatal


                                        4
 1   accident because the ATV driver failed to yield the

 2   right-of-way); Irwin v. Mucha, 154 A.D.2d 895, 896 (4th Dep't

 3   1989) (relying on VTL § 1162 to affirm grant of summary judgment

 4   in favor of plaintiff whose foot was run over by a driver after

 5   she exited rear seat of the driver's car).

 6        The undisputed facts are that Gray could have seen the

 7   barrier that she drove into and that she drove into it anyway.

 8   Her actions were thus the sole proximate cause of the accident.

 9        For the foregoing reasons, the judgment of the district

10   court be and it hereby is AFFIRMED.


11                                 FOR THE COURT:
12                                 CATHERINE O'HAGAN WOLFE, CLERK

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