Opinion
Index No. 159388/2022 Motion Seq. No. 001
03-20-2024
MIGUEL CORTEZ, Plaintiff, v. DONALD ROY, NEW YORK CITY HOUSING AUTHORITY Defendants.
Unpublished Opinion
MOTION DATE 12/28/2022.
PRESENT: HON. JAMES G. CLYNES, Justice.
DECISION + ORDER ON MOTION
HON. JAMES G. CLYNES, Justice.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 17, 19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46 were read on this motion to/for JUDGMENT - SUMMARY.
Pursuant to CPLR 3212, plaintiff moves for summary judgment against defendants on the issue of liability, and moves under CPLR 3211(b) to strike all of defendants' affirmative defenses related to liability. Defendants oppose and reply.
Defendants, Donald Roy ("Roy") and the New York City Housing Authority ("NYCHA" or "owner"), cross-move for summary judgment to dismiss plaintiffs complaint or grant them summary judgment finding plaintiff negligent for his injuries. Plaintiff opposes and replies.
The court does not consider defendants' reply in support of their cross-motion, as a cross-movant is not entitled to a reply and defendants have not sought or been granted leave to file a reply.
For the reasons below, plaintiff's motion for summary judgment on defendants' liability is granted and dismissal of defendants' affirmative defenses is partially granted but only as to the fifth and sixth affirmative defenses on liability. Defendants' cross-motion for summary judgment is denied with leave to refile on the issue of serious injury following the close of discovery.
BACKGROUND
On November 2, 2022, plaintiff commenced this action by filing a summons and complaint against Roy and NYCHA (NYSCEF Doc. No. (Doc.) 1, complaint). The complaint alleges, inter alia, that plaintiff operated a bicycle at all times, Roy is an authorized driver and was driving the vehicle owned by NYCHA, and on March 9, 2022, at the intersection of West 94th Street and Amsterdam Avenue, plaintiff sustained injuries when the defendants' vehicle came into contact with plaintiff while he was seated on the bicycle (id.). The complaint also alleges that plaintiff s injuries were due to defendants' negligent control of the vehicle, that he sustained serious injury under Section 5102 (d) of the Insurance Law, and sustained economic loss greater than basic economic loss under Section 5102 of the Insurance Law (id.).
Defendants filed their answer on November 21, 2022, and their amended answer on February 1, 2023 (Doc. 5, answer; Doc. 18, amended answer). The amended answer, inter alia, denies most of the complaint's allegations but admits that NYCHA owns the vehicle and that Roy operated the vehicle with the knowledge, permission, and consent of NYCHA (Doc. 18). Additionally, defendants assert seven affirmative defenses (id.).
At the General Municipal Law 50-H examination, plaintiff testified that he was in the crosswalk with the crosswalk light in his favor when he saw defendants' vehicle waiting on the comer for the signal light to change to make a right turn from Amsterdam Avenue onto West 94th Street (Doc. 25, 50-H exam tr, defendants' exhibit 5 at 28; Doc. 35, 50-H exam tr, defendants' cross-mot exhibit 4 at 28). Plaintiff also testified that he rode his bicycle against the traffic, rode on the sidewalk on Amsterdam Avenue before reaching West 94th Street, and that he did not stop before entering the crosswalk (id. at 24, 25-26, 28). Plaintiff testified that he was in the crosswalk when defendants' vehicle collided with him (id. at 27, 28).
Plaintiff's Motion For Summary Judgment
Plaintiff contends, inter alia, that defendants1 negligent conduct violated Vehicle and Traffic Law ("VTL") 1146, causing plaintiffs injuries (Doc. 7, aff of plaintiffs counsel at 3). VTL 1146 requires, among other things, that every vehicle driver exercise care to avoid colliding with any bicyclist or pedestrian on a roadway and give warning by sounding the horn when necessary. Plaintiff asserts that he was standing with his bicycle at the intersection of West 94th Street and Amsterdam Avenue intending to cross the intersection and was straddling his bicycle when he entered the crosswalk (Doc. 10, plaintiff's aff, plaintiffs exhibit C). Plaintiff argues that before entering the crosswalk, he saw no traffic approaching while he straddled his bicycle and then entered the crosswalk (Doc. 7 at 2). Plaintiff asserts that while in the crosswalk, he saw Roy operating the vehicle at the corner of West 941b Street and Amsterdam Avenue waiting for the light to change (id.). Plaintiff asserts he was suddenly struck by the vehicle driven by Roy when plaintiff was almost to the other side of the street but still in the crosswalk (id.).
Defendants' opposition argues, inter alia, that plaintiff failed to meet his prima facie burden since plaintiffs conduct was the sole proximate cause of his injuries and that plaintiffs motion is procedurally defective (Doc. 19, aff of defendants' counsel at 5). Defendants argue that plaintiff created triable issues of fact because plaintiffs affidavit, 50-H testimony, and other pleadings contain contradictions as to whether plaintiff was straddling his bicycle in the intersection or rode into the crosswalk without stopping (Doc. 20, defendants' mem of law in opp to summary judgment at 8). Roy asserts that he did not see anyone in the crosswalk, did not see plaintiff before the collision, and did not have an opportunity to avoid the collision with plaintiff (Doc. 26, Roy's aff, defendants' exhibit 6). Defendants also assert that plaintiffs motion is procedurally defective since it neither contains the Notice of Claim nor a statement of material facts pursuant to Uniform Civil Rule 202,8-g (Doc. 19 at 2). Defendants argue that plaintiffs motion is premature because they have not received plaintiffs medical records, which are necessary to establish whether plaintiff sustained a serious injury within the meaning of Insurance Law 5104 (id. at 6).
Defendants' Cross-Motion For Summary Judgment
Defendants cross-move to dismiss plaintiffs complaint on the issue of defendants' liability, arguing, inter alia, that plaintiff violated VTL provisions and his conduct was the sole proximate cause of his injuries (Doc. 28, aff of defendants' counsel at 3). Defendants argue that plaintiff violated several provisions of the VTL, such as VTL 1127, 1231, 1234, and that an unexcused VTL violation is negligence per se (Doc. 30, defendants' mem of law in support of cross-mot for summary judgment at 6, 7). VTL 1127, among other things, requires vehicles to follow the designated direction signpost of one-way roadways. VTL 1231, among other things, states that bicyclists have all the same rights and duties applicable to drivers. VTL 1234, among other things, states that bicyclists riding over a curb must come to a full stop before entering a roadway. Defendants assert that plaintiff is negligent as a matter of law because he admitted that he rode his bicycle against the traffic before entering the roadway without stopping and into the crosswalk when the collision happened (id. at 6-7). Defendants argue that plaintiff was not lawfully in the intersection at the time of the collision because he was required to obey traffic signals, pursuant to VTL 1111, and failed to do so (id. at 7-8). Roy asserts that he did not see anyone in the crosswalk, did not see plaintiff before the collision, and did not have an opportunity to avoid the collision with plaintiff (Doc. 38, Roy's aff, defendants' cross-mot exhibit 7). Additionally, defendants contend that plaintiff did not sustain serious injuries under Insurance Law 5102(d), and that they have not received plaintiff's medical records and an independent medical examination has not been conducted (Doc. 28 at 12).
Plaintiffs opposition reasserts many of the same arguments made in his motion for summai)' judgment. Plaintiff argues, inter alia, that defendants' conduct violated VTL 1146. which caused plaintiffs injuries (Doc. 44, plaintiffs counsel reply aff and opp to cross-mot at 1-2). Plaintiff also argues that defendants failed to provide any information that the vehicle was stopped prior to turning onto West 94th Street or that Roy indicated that the vehicle was going to turn by using the turn signal, and that Roy failed to exercise care to avoid the collision (id. at 3, 4). Plaintiff claims that even if his own conduct was negligent, it is not sufficient by itself to defeat his motion for summary judgment as to liability (id. at 2). Lastly, plaintiff asserts that a statement of material facts is not required for summary judgment under Uniform Civil Rule 202.8-g (id. at 3).
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Without a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The moving party has a heavy burden as the facts must be viewed in a light most favorable to the non-moving party (William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]). If the moving party meets their burden, the opposing party must produce evidentiary proof in admissible form that is sufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Additionally, summary' judgment is not premature because the record may lack testimony or documentation that may illuminate issues raised by the parties in the hopes that further evidence to defeat summary judgment may be uncovered during discovery (Flores v City of New York, 66 A.D.3d 599, 600 [1st Dept 2009]).
"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff" (Han Hao Huang v "John Doe", 169 A.D.3d 1014, 1015 [2d Dept 2019]). A plaintiff does not have to establish that a defendant's negligence is the sole proximate cause of the plaintiffs injuries in order to establish a prima facie case but rather show that the defendant's negligence is a substantial cause of the events that produced the injury (Tselebis v Ryder Truck Rental, Inc., 72 A.D.3d 198, 200 [1st Dept 2010] [citations and emphasis omitted]).
The plaintiff does not have a burden to show absence of their comparative negligence for defendant's liability on summary judgment (Rodriguez v City of New York, 31 N.Y.3d 312, 318 [2018]). "[U]nder the doctrine of comparative negligence, a driver who lawfully enters an intersection . . . may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection" (Nevarez v S.R.M. Mgt. Corp., 58 A.D.3d 295, 298 [1st Dept 2008] [internal quotation marks and citation omitted]). Factual issues concerning a plaintiff s comparative negligence speaks to damages and is not a defense to a plaintiffs prima facie case (Bokum v Sera Sec. Servs., LLC, 165 A.D.3d 535 [1st Dept 2018]). Thus, a bicyclist may prevail on the issue of liability by showing a driver failed to see the bicyclist through the ordinary' use of their senses and took no action to avoid the collision (Verna v Little Richie Bus Serv. Inc., 2024 NY Slip Op 00176 [1st Dept 2024]).
Uniform Civil Rule 202.8-g states that for summary judgment motions under CPLR 3212, the court may direct a statement of material facts from the moving party asserting there is no disputed genuine issues of material fact (see 22 NYCRR 202.8-g).
CPLR 3211(b) states that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." The plaintiff bears the burden of showing that affirmative defenses arc without merit as a matter of law when moving to dismiss them pursuant to CPLR 3211(b) (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 A.D.3d 541, 541 [1st Dept 2011]). When deciding a motion to dismiss a defense, "the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (id. at 542 [citation omitted]). Further, "[a] defense should not be stricken where there are questions of fact requiring trial" (id. [citation omitted]).
In cases involving a plaintiffs comparative negligence, a defendant motorist needs to provide a non-negligent explanation for the collision (Shin v Ljulja, 219 A.D.3d 1238, 1238-39 [1st Dept 2023], see also Romero v Valdez, 198 A.D.3d 496 [1st Dept 2021]). Conflicting evidence that contradicts a plaintiffs testimony may raise a triable issue of fact that would preclude dismissal of an affirmative defense (Lopez v 1675 Realty, 209 A.D.3d 407, 408-09 [1st Dept 2022] [plaintiff testified that the area where the accident happened was dark whereas the defendant's affidavit said the area was illuminated by the building and streetlight]). However, a motorist failing to see a bicyclist prior to the collision or not having an opportunity to avoid the collision is insufficient as a triable issue of fact for liability because it goes to comparative negligence (Fernandez v Ortiz, 183 A.D.3d 443, 444 [1st Dept 2020]).
Plaintiffs Motion For Summary Judgment
Plaintiff met his prima facie burden on defendants' liability. Plaintiff demonstrated that defendants' conduct was a substantial cause of his injuries when the vehicle collided with him. Plaintiff and Roy's affidavits demonstrate that the collision occurred while plaintiff was in the crosswalk. Plaintiff saw Roy and the vehicle while in the crosswalk, while Roy admits that he only saw plaintiff after the collision occurred. Thus, Roy failed to see plaintiff through the normal use of his senses and failed to take reasonable care to avoid the collision. The fact that Roy did not see plaintiff prior to the collision and did not have an opportunity to avoid the collision is not a triable issue of fact. Additionally, plaintiff showed that defendants' affirmative defenses regarding liability fifth and sixth affirmative defenses - should be stricken because defendants' arguments have only addressed plaintiffs comparative negligence. Since plaintiff has met his prima facie burden on defendants' liability, the burden shifts to defendants to show there are triable issues of fact to preclude summary judgment.
Defendants fail to meet their burden to show there are triable issues of fact on their liability. Defendants' evidence does not provide a non-negligent explanation or conflicting evidence for colliding with plaintiff. It is undisputed that plaintiff was in the crosswalk, with the light in his favor, when the collision happened. The fact that Roy did not see plaintiff and therefore had no opportunity to avoid the collision is not a triable issue of fact on liability. Whether plaintiff offers self-contradictory evidence if plaintiff was straddling or riding through the crosswalk may go towards his comparative negligence, and thus damages, but does not absolve Roy of failing to have seen plaintiff when he was in the crosswalk and to have taken reasonable steps to avoid the collision.
Contrary to defendants' arguments, plaintiffs motion for summary judgment is not procedurally deficient. Plaintiff is not required to submit a statement of material facts unless ordered to by the court because Uniform Civil Rule 202,8-g contains permissive rather than mandatory language. Additionally, defendants' assertion that plaintiff s motion is premature because they have not yet received plaintiff s medical records is misplaced. Defendants admit that the medical records will be used to assess whether plaintiff was seriously injured as defined by Insurance Law 5104.
Defendants' Cross-Motion For Summary Judgment
Defendants fail to meet their prima facie burden. Defendants' have not shown that plaintiff was the sole proximate cause of his injuries. Roy's affidavit states that he did not see plaintiff prior to the collision, whereas plaintiff saw Roy while he was in the crosswalk. Thus, Roy failed to see plaintiff through the ordinary use of his senses and did not take action to avoid the collision. While defendants assert that plaintiff rode into the street and did not stop before entering the crosswalk, such a contention speaks to plaintiffs comparative negligence that, by itself, is insufficient to defeat summary judgment on liability. Discovery, as to damages, is to proceed. The court does not address defendants' argument of whether plaintiff has sustained serious injury under Insurance Law § 5102(d) because discovery has not been completed and defendants have not obtained plaintiffs medical records. Since defendants failed to meet their prima facie burden, the court does not address plaintiffs arguments.
WHEREEORE, it is hereby:
ORDERED that plaintiffs motion for summary judgment on liability, pursuant to CPLR 3212, and motion to dismiss defendants' fifth and sixth affirmative defenses on liability, pursuant to CPLR 3211(b); is granted; and it is further
ORDERED that defendants' cross-motion for summary judgment, pursuant to CPLR 3212, is denied, with leave to refile on the issue of serious injury following the close of discovery; and it is further
ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the court.