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Karolak v. Aravelo

January 8, 2009

ANNA KAROLAK, PLAINTIFF-APPELLANT,
v.
LENIN ARAVELO, MARCAL PAPER MILLS, INC., AND UTICA MUTUAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS, AND ROSEMARIE FASULO, AND LAND ROVER CAPITAL GROUP, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4598-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2008

Before Judges Wefing, Yannotti and LeWinn.

Plaintiff Anna Karolak appeals from an order entered by the trial court on May 11, 2007, which granted summary judgment in favor of defendants Lenin Aravelo and Marcal Paper Mills, Inc. (Marcal). For the reasons that follow, we reverse.

The following facts are taken from the certifications and exhibits submitted to the trial court on the summary judgment motion. This matter arises from a motor vehicle accident that occurred on July 26, 2003. On that date, Aravelo was driving a fifty-three-foot tractor-trailer for his employer, Marcal. Aravelo approached an intersection at Molnar Avenue and East 54th Street in Elmwood Park, New Jersey. Aravelo intended to make a left turn from Molnar onto East 54th Street. At the time, defendant Rosemarie Fasulo was driving a Land Rover that was owned by defendant Land Rover Capital Group (LRCG). Fasulo was proceeding southbound on East 54th Street. Plaintiff also was traveling southbound. She was driving her automobile directly behind Fasulo's vehicle.

At his deposition, Aravelo testified that there is a stop sign in the southbound lane of East 54th Street at the intersection with Molnar. Aravelo was familiar with the intersection. Aravelo said that, when he started to make the left turn into the northbound lane of East 54th Street, he saw the Land Rover approach the intersection and stop at the stop sign. Aravelo explained that he could not complete the left turn from Molnar because the Land Rover was in his way. According to Aravelo, both vehicles were stopped.

Aravelo said that he and Fasulo looked at each other. Aravelo testified that he did not make any hand motions to Fasulo. He said that Fasulo looked at him, "shifted into gear, hit the gas," backed up and struck plaintiff's car. Aravelo said that he did not move his tractor-trailer until after Fasulo's car struck plaintiff's vehicle. To complete the turn, Aravelo had to drive his tractor-trailer onto the sidewalk.

At her deposition, plaintiff testified that she was driving south on East 54th Street and she saw a stop sign. She observed the Land Rover at a complete stop at Molnar Avenue. The Marcal truck was making a left turn from Molnar to proceed northbound on East 54th Street. The front end of the truck was on the northbound side of East 54th Street. Plaintiff said that the truck was "slowing to a stop."

Plaintiff testified that she was bringing her vehicle to a stop when the Land Rover started moving backwards and struck her car. Plaintiff did not see the driver of the truck make any gestures to Fasulo or anyone else on the roadway. Plaintiff said that she did not see whether any part of the tractor-trailer had crossed over into Fasulo's lane of travel but said that "[i]t was obvious that [Fasulo] could not proceed going forward because [the truck] was blocking [the road]."

Fasulo testified at her deposition that she lived in Elmwood Park and was familiar with the intersection at Molnar Avenue and East 54th Street. Fasulo stated that she was traveling south on East 54th Street and stopped at the stop sign at Molnar Avenue. She observed a Marcal tractor-trailer turning left from Molnar onto East 54th Street. Fasulo said that the truck driver did not have room to make the turn.

Fasulo further testified that she was stopped at the stop sign for a minute. Fasulo said that when the truck driver "saw he was coming into [her] front end, he started motioning [her] back, to go back, so that he [could] complete his turn." Fasulo said that the tractor-trailer was stopped. She put her car into reverse. The car started to roll back and struck plaintiff's vehicle.

Plaintiff filed a complaint in which she named Aravelo, Marcal, Fasulo, and LRCG as defendants. On September 28, 2006, the claims against LRCG were dismissed with prejudice. On December 15, 2006, the court dismissed claims against Marcal without prejudice because Marcal had filed a bankruptcy petition.

Marcal was self-insured and it appears that its self-insurance was unavailable as a result of the bankruptcy filing. The trial court therefore granted plaintiff leave to amend her complaint to assert a claim for uninsured motorist benefits against her insurer, Utica Mutual Insurance Company. On April 3, 2007, after the bankruptcy court granted plaintiff relief from the automatic stay barring the assertion ...


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