        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

262
CA 11-02044
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


LISA-ANN PRIES-JONES AND CLAYTON JONES,
INDIVIDUALLY AND AS HUSBAND AND WIFE,
PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TIME WARNER CABLE, INC., ALSO KNOWN AS TIME
WARNER, INC., AND JONATHAN T. JOSEPH,
DEFENDANTS-RESPONDENTS-APPELLANTS.


CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS-RESPONDENTS.

HARRIS BEACH PLLC, PITTSFORD (MICHAEL J. MASINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Orleans County (James P. Punch, A.J.), entered July 26, 2011 in a
personal injury action. The order granted the motion of plaintiffs
for partial summary judgment on the issue of negligence, but denied
the motion with respect to comparative negligence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Lisa-Ann Pries-Jones (plaintiff) when a truck
operated by defendant Jonathan T. Joseph (defendant) and owned by
defendant Time Warner Cable, Inc., also known as Time Warner, Inc.
(Time Warner), backed into the front of a vehicle operated by
plaintiff. Defendant was a “preventative line maintenance technician”
for Time Warner, and his job duties included traveling to inspect
cable lines on poles along the side of the road. At approximately
3:00 P.M. on December 15, 2008, a clear sunny day, defendant was
driving on a country road in Orleans County when he noticed a problem
with the lines. By the time he stopped the truck, defendant had
passed the problem area, so he put his truck in reverse. Although
defendant claimed that he looked at his side view mirrors and saw no
one behind him, plaintiff’s vehicle in fact was there, and a collision
ensued. Plaintiff had been driving behind the truck on the two-way
road and came to a stop when defendant stopped.

     Plaintiffs alleged in the complaint that defendant negligently
operated the truck, and that Time Warner was vicariously liable for
                                 -2-                           262
                                                         CA 11-02044

the ensuing damages. In their answer, defendants asserted as an
affirmative defense that plaintiff engaged in culpable conduct that
contributed to the happening of the accident. Following discovery,
plaintiffs moved for partial summary judgment on the issues of
negligence and proximate cause, as well as dismissal of the
affirmative defense alleging her culpable conduct. In opposition to
the motion, defendants submitted the affidavit of a witness to the
accident who essentially stated that plaintiff could easily have
avoided the accident by taking evasive action. Supreme Court granted
only that part of the motion on the issue of defendant’s negligence.
Plaintiffs appeal from the order insofar as it denied that part of
their motion to dismiss the affirmative defense concerning plaintiff’s
culpable conduct, and defendants cross-appeal from the order insofar
as it granted that part of plaintiffs’ motion on the issue of
defendant’s negligence. We affirm.

     With respect to plaintiffs’ appeal, we conclude that the court
properly determined that there is an issue of fact concerning
plaintiff’s alleged culpable conduct and thus properly denied that
part of her motion seeking dismissal of that affirmative defense. We
agree with plaintiffs that there was no foundation for the opinions
offered by the eyewitness in his affidavit. Nevertheless, his factual
assertions alone are sufficient to raise an issue of fact whether, if
in fact plaintiff faced an emergency situation, she had a sufficient
opportunity to take evasive action to avoid the accident (see Gaeta v
Morgan, 178 AD2d 732, 734; see generally McGraw v Glowacki, 303 AD2d
968, 969).

     Finally, we conclude that the court properly determined that
defendant was negligent as a matter of law. Plaintiffs met their
initial burden of proof by submitting evidence that defendant backed
the truck into plaintiff’s vehicle on a public roadway (see Vehicle
and Traffic Law § 1211 [a]; Garcia v Verizon N.Y., Inc., 10 AD3d 339,
340; Pressner v Serrano, 260 AD2d 458). In opposition to the motion,
defendants failed to raise an issue of fact with respect to
negligence. Although defendant testified at his deposition that he
“[g]lanced” at his side view mirrors before putting the truck in
reverse and did not see plaintiff’s vehicle, we conclude that his
testimony is insufficient to raise an issue of fact regarding his
negligence (see Garcia, 10 AD3d at 339-340).




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
