Summary
affirming denial of summary judgment; sufficient evidence of comparative negligence including that plaintiff opened door of car when traffic was stopped and there was sufficient room for cars to pass without hitting plaintiff or his car, as well as evidence that bus struck plaintiff's back and the edge of the car door and potentially could have seen the plaintiff before moving bus forward
Summary of this case from Reyes v. United StatesOpinion
12999 Index No. 450358/16 Case No. 2020-02930
01-28-2021
John Alberto PAULINO, Plaintiff–Respondent, v. MTA BUS COMPANY et al., Defendants–Appellants.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace (William E. Morrissey Jr. of counsel), for appellants. Elefterakis, Elefterakis & Panek, New York (Oliver R. Tobias of counsel), for respondent.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace (William E. Morrissey Jr. of counsel), for appellants.
Elefterakis, Elefterakis & Panek, New York (Oliver R. Tobias of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered on or about February 24, 2020, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to demonstrate conclusively that plaintiff opened the door of his parked car when it was not safe to do so, in violation of Vehicle and Traffic Law § 1214, and therefore was the sole proximate cause of the accident in which he and the open car door were struck by defendant MTA's bus. Defendant bus operator testified that he never saw plaintiff or the open car door before the accident, which occurred after he had pulled the bus forward after a light turned green, and that plaintiff opened his door into the side of the bus that was aligned with his car. However, while there is no dispute that the door was "on the side available to moving traffic" (id. ), there is evidence that plaintiff opened the door while traffic was stopped and that there was sufficient room for cars to pass without hitting him or his car. Moreover, plaintiff testified that the bus struck his back and the edge of the car door while he was getting into the car. The conflicting testimony and the incompleteness of the video footage submitted by defendants, even if properly authenticated and considered, presents issues of fact as to whether plaintiff violated Vehicle and Traffic Law § 1214. There are also issues of fact as to whether the bus operator exercised reasonable care or should have seen plaintiff and the open door before moving the bus forward and should have been able to avoid the contact (see Sayed v. Aviles, 72 A.D.3d 1061, 900 N.Y.S.2d 122 [2d Dept. 2010] ; see also Ramos v. New York City Tr. Auth., 90 A.D.3d 492, 935 N.Y.S.2d 6 [1st Dept. 2011] ; see generally Vehicle and Traffic Law § 1146[a] ; 1162).