Opinion
06-10-2016
Dawn M. BUSH, Plaintiff–Appellant, v. Ricki KOVACEVIC, Defendant–Respondent.
Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of Counsel), for Plaintiff–Appellant. Hagelin Kent LLC, Buffalo (Benjamin R. Wolf of Counsel), for Defendant–Respondent.
Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of Counsel), for Plaintiff–Appellant.
Hagelin Kent LLC, Buffalo (Benjamin R. Wolf of Counsel), for Defendant–Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
Opinion MEMORANDUM: Plaintiff commenced this action seeking damages for injuries she sustained when, as a pedestrian, she was struck by a vehicle owned and operated by defendant. Following discovery, plaintiff purported to move for partial summary judgment “on the issue of liability,” but she did so without raising the issue of serious injury (see generally Ruzycki v. Baker, 301 A.D.2d 48, 51, 750 N.Y.S.2d 680 ). Although not explicitly mentioned in her motion, plaintiff implicitly sought summary judgment dismissing defendant's first affirmative defense, which alleged plaintiff's comparative negligence, i.e., whether plaintiff's own conduct contributed to the accident. Supreme Court denied the motion.
As a preliminary matter, we note that because plaintiff did not raise the issue of serious injury on her motion, we cannot presume that such issue “was necessarily decided” by the court (Ruzycki, 301 A.D.2d at 51, 750 N.Y.S.2d 680 ). We therefore address plaintiff's motion only with respect to the issues of defendant's negligence and proximate cause (see Leahey v. Fitzgerald, 1 A.D.3d 924, 925, 768 N.Y.S.2d 55 ; cf. Stevens v. Zukowski, 55 A.D.3d 1400, 1401, 865 N.Y.S.2d 435 ). We conclude that the court erred in denying the motion with respect to the issues of defendant's negligence and proximate cause, but properly denied the motion insofar as it implicitly sought dismissal of the first affirmative defense (see Brubaker v. Houseknecht, 83 A.D.3d 1539, 1540, 921 N.Y.S.2d 607 ). Plaintiff established her prima facie entitlement to judgment as a matter of law on the issues of defendant's negligence and proximate cause by establishing that she was crossing the street within the crosswalk when she was “struck by defendant's vehicle, which was making a left turn” (Beamud v. Gray, 45 A.D.3d 257, 257, 844 N.Y.S.2d 269 ; see Gyabaah v. Rivlab Transp. Corp., 129 A.D.3d 447, 447, 9 N.Y.S.3d 576 ; see generally Vehicle and Traffic Law § 1111[a][1] ).
In support of her motion, plaintiff submitted defendant's deposition testimony. In that testimony, defendant stated that, because she struck plaintiff on the passenger side of her car, plaintiff “had to have been maybe two feet off of the crosswalk.” Although defendant contends that plaintiff may have violated Vehicle and Traffic Law § 1151(b), which provides that “[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield,” that section “by its plain terms, applies only where there are no traffic signals” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Wallace v. Barody, 124 A.D.3d 1172, 1174, 3 N.Y.S.3d 159 ; Kochloffel v. Giordano, 99 A.D.2d 798, 799, 472 N.Y.S.2d 132 ). Here, there was a traffic signal and, therefore, section 1151 does not apply. Moreover, the fact that the crosswalk was not marked because of the recent repaving of the road is also of no moment where, as here, the undisputed evidence establishes that plaintiff was walking in a crosswalk as defined by section 110 (see Kochloffel, 99 A.D.2d at 798, 472 N.Y.S.2d 132 ).
In any event, defendant admitted that she did not see plaintiff until the impact had already occurred, and we thus conclude that defendant's claim concerning plaintiff's location in the street is mere speculation and an insufficient basis to deny plaintiff's motion insofar as it relates to defendant's negligence (see France Herly Bien–Aime v. Clare, 124 A.D.3d 814, 815, 2 N.Y.S.3d 557 ; Sulaiman v. Thomas, 54 A.D.3d 751, 752, 863 N.Y.S.2d 723 ). Although defendant contended that she looked for pedestrians before turning left, defendant had both “a statutory duty to use due care to avoid colliding with pedestrians” (Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 ; see Vehicle and Traffic Law § 1146 ), as well as “a common-law duty to see that which [she] should have seen through the proper use of [her] senses ... [T]he fact that [defendant] never saw [plaintiff, who was walking slowly with a cane,] does not excuse [defendant's] conduct” (Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644 ; see Barbieri, 72 A.D.3d at 856, 900 N.Y.S.2d 315 ).
Contrary to plaintiff's contention, however, we conclude that there are issues of fact concerning plaintiff's comparative negligence (see Brubaker, 83 A.D.3d at 1540, 921 N.Y.S.2d 607 ). We agree with defendant that the evidence submitted by plaintiff establishes that there are triable issues of fact whether the light for pedestrian traffic had changed before plaintiff commenced walking across the street (see generally Vehicle and Traffic Law § 1112[b] ). We thus conclude that “the evidence submitted by plaintiff does not establish a total absence of comparative negligence as a matter of law” (Dasher v. Wegmans Food Mkts., 305 A.D.2d 1019, 1019, 758 N.Y.S.2d 585 ; see Tiwari v. Tyo, 106 A.D.3d 1462, 1463, 966 N.Y.S.2d 304 ; Brubaker, 83 A.D.3d at 1540, 921 N.Y.S.2d 607 ; cf. Stevens, 55 A.D.3d at 1401, 865 N.Y.S.2d 435 ).
In opposition to the motion, defendant submitted an uncertified police accident report, wherein the police officer indicated that there was damage to the front passenger side of defendant's vehicle. Although “reports of police officers made upon their own observation and while carrying out their police duties are generally admissible in evidence” (Yeargans v. Yeargans, 24 A.D.2d 280, 282, 265 N.Y.S.2d 562 ; see Szymanski v. Robinson, 234 A.D.2d 992, 992, 651 N.Y.S.2d 826 ), the report submitted by defendant was “not authenticated” and, “[b]ecause the report was not submitted in evidentiary form, it should not have been considered on the summary judgment motion” (Szymanski, 234 A.D.2d at 992, 651 N.Y.S.2d 826 ; see Golombek v. Marine Midland Bank, 193 A.D.2d 1113, 1114, 598 N.Y.S.2d 891 ). Here, as in Szymanski, defendant did not “provide[ ] an acceptable excuse” for failing to tender the proof in admissible form (234 A.D.2d at 992, 651 N.Y.S.2d 826 ; see generally Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76 ).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of plaintiff's motion that sought summary judgment with respect to the issues of defendant's negligence and proximate cause and as modified the order is affirmed without costs.