Opinion
Index No. 56104/2019 Motion Sequence No. 1
11-10-2020
DEBORAH A. GOETZ and MICHAEL GOETZ, Plaintiffs, v. LUCIA J. MADLER, Defendant.
Unpublished Opinion
DECISION AND ORDER
Terry Jane Ruderman, Judge
The following papers were considered in connection with plaintiffs' motion for an order granting them summary judgment on the issue of liability, and dismissing defendant's first, second and fourth affirmative defense as to culpable conduct, comparative negligence, and assumption of risk:
Papers Numbered
Notice of Motion, Affirmation, Affidvait, Exhibits A - F 1
Affirmation in Opposition 2
Reply Affirmation 3
This personal injury action involves a pedestrian knockdown accident that occurred on February 14,2019, at approximate1y 4:00 p.m. Plaintiff Deborah Goetz (hereinafter, "plaintiff) asserts in her complaint that she was crossing Saw Mill River Road within a marked crosswalk at its intersection with Center Street in the Village of Ardsley, New York, when she was struck by a vehicle owned and operated by defendant Lucia Madler who was turning right from Center Street onto Saw Mill River Road northbound. In response to the complaint in this action, defendant's answer includes affirmative defenses that include culpable conduct and comparative negligence.
In support of the present motion for partial summary judgment on the issue of defendant's liability, and to dismiss the affirmative defenses relating to culpable conduct on plaintiffs part, . plaintiff provides an affidavit in which she attests that before she began to cross Saw Mill River Road, she looked in both directions for traffic; as she was approximately halfway into the northbound lane, she was struck from behind by defendant, who was turning right onto Saw Mill River Road from Center Street, She states that she could not see defendant's vehicle before it struck her. It is undisputed that a stop sign controlled traffic turning from Center Street onto Saw Mill River Road, and that plaintiff as a pedestrian, had the right of way. It is also undisputed that defendant was ticketed for a violation of Vehicle and Traffic Law § 1151 (a), failure to yield to a pedestrian in a crosswalk, for which she pleaded guilty and paid a fine.
Defendant testified at her deposition that she believed plaintiff "wasn't really at the crosswalk[] [because] [i]f she was at the crosswalk, I would have seen her." Defendant suggested that plaintiff "just walked off the curb without looking."
Defendant has not submitted any evidentiary materials in opposition; she relies on the affirmation of counsel, who offers general rules about the legal standards for granting summary judgment. Counsel adds that defendant must be entitled to defend the case on the issues of damages and serious injury.
Analysis
In order to be awarded summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, with evidentiary proof in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The evidence must be viewed in the light most favorable to the opponents of the motion, and every favorable inference must be afforded to the non-movants (see Gardella v Remizov, 144 A.D.3d 977, 979 [2d Dept 2016]). Here, viewing the evidence in the light most favorable to defendant, and affording her every viable favorable inference, a right to partial summary judgment on the issue of defendant's liability has been demonstrated, as has a right to dismissal of the affirmative defenses relating to culpable conduct on plaintiffs part.
"[P]laintiff established, prima facie, [her] entitlement to judgment as a matter of law on the issue of liability by presenting proof that [she] was walking within a crosswalk and that [she] looked for approaching traffic before [she] began to cross" (Hamilton v Kong, 93 A.D.3d 821, 821-822 [2d Dept 2012]; see also Gaston v Vertsberger, 176 A.D.3d 919, 919-920 [2d Dept 2019]). Defendant did not submit any evidentiary materials in opposition to this motion, and. although the court may consider defendant's deposition testimony which was submitted by plaintiff, defendant's testimony does not create any issues of fact that would warrant denial of plaintiffs motion. Specifically, defendant's reasoning, during her deposition, that plaintiff must not have been in the crosswalk because defendant did not see her there, amounts to mere unsupported speculation (see Hamilton v Kong, 93 A.D.3d at 822). Defendant's failure to see plaintiff before the collision does not in itself provide an evidentiary basis from which to infer that she was not there to be seen. As in Domanova v State of New York (41 A.D.3d 633, 634 [2d Dept 2007]), where the driver who struck a pedestrian in a crosswalk testified at trial that he did not see anyone in the crosswalk, "the fact that the driver never saw the [plaintiff] does not excuse [her] conduct" (id.). Moreover, since defendant pleaded guilty to a violation of Vehicle and Traffic Law § 1151 (a), which charge was based on her failure to yield to a pedestrian in a crosswalk, she cannot now be heard to contradict her own legal admission so as to deny plaintiffs presence in the crosswalk, especially in the absence of any explanation for her change of position, and absent affirmative proof supporting her assertion.
Plaintiff s submitted affidavit also makes a prima facie showing of her lack of comparative negligence or culpable conduct, and nothing in any evidence submitted to this Court demonstrates the existence of any issue of fact on those points. Nor is there any factual basis for an assumption of risk defense.
This determination does not eliminate defendant's fight to a trial on damages, including the right to challenge whether plaintiffs injuries satisfy the serious injury threshold.
Based upon the foregoing, it is hereby
ORDERED that the motion for an order pursuant to CPLR 3212 granting partial summary judgment to plaintiffs and against defendant on the issue of liability, and dismissing defendant's affirmative defenses raising the issues of culpable conduct, comparative negligence, and assumption of the risk, is granted, and it is further
ORDERED that the parties are directed to appear in the Settlement Conference Part, at a time and manner of which they will be notified by that Part.
This constitutes the decision and order of the Court.