Opinion
Index 18-612645
07-02-2020
BRYAN PERRY, Plaintiff, v. ERIN MCDONALD, Defendant
ECONOMOU & ECONOMOU, P.C. Attorney for Plaintiff GENTILE & TAMBASCOE ESQS. Attorney for Defendant.
Unpublished Opinion
MOTION DATE 3-26-20-ADJ.
DATE 6-16-20.
ECONOMOU & ECONOMOU, P.C. Attorney for Plaintiff
GENTILE & TAMBASCOE ESQS. Attorney for Defendant.
PRESENT: Hon. MARTHA L. LUFT, Acting Justice.
Upon the following papers read on this e-filed motion for partial summary judgment Notice of Motion/Order to Show
Cause and supporting papers filed by plaintiff, on February 18, 2020; Notice of Cross Motion and supporting papers;
Answering Affidavits and supporting papers_; Replying Affidavits and supporting papers _; Other_; (and after hearing counsel tn support and opposed to the motion) it is, ORDERED that the motion by plaintiff for partial summary judgment on the issue of liability and to dismiss defendant's affirmative defense of culpable conduct is granted.
This action was commenced by plaintiff Bryan Perry to recover damages for injuries he allegedly sustained on September 12, 2015, ~t approximately 4:30 p.m., when his motorcycle was struck by a vehicle owned and operated by defendant Erin McDonald, on Straight Path Road, at or near its intersection with Little East Neck Road, in Babylon, New York. The accident allegedly occurred when defendant attempted to make a left turn from the southbound lanes of Straight Path Roadonoo Little East Neck Road, and struck plaintiff s motorcycle, which was traveling north on Straight Path Road.
Plaintiff now moves for summary judgment on the issue of defendant's negligence and to dismiss defendant's affirmative defense of culpable conduct. Plaintiff argues that defendant violated, inter alia, Vehicle and Traffic Law ~ 1141 by making a left turn into the path of plaintiff s motorcycle, which was traveling with the right-of-way. In support of the motion, plaintiff submits, inter alia, the transcripts of the deposition testimony of the parties, his affidavit, and the uncertified police accident report, Defendant does not oppose the motion.
Initially, the Court notes that the uncertified police report submitted in support of plaintiff s motion cannot be considered for the instant motion (see Ganchrow v Kremer, 157 A.D.3d 771, 69 N.Y.S.3d 352 [2d Dept 2018]; Torres v Kallof J, 128 A.D.3d 1052, 8 N.Y.S.3d 597 [2d Dept 2015]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The moving party has the initial burden of proving entitlement to summary judgment (id). Once the moving party demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (See Vega v Restani Constr. Corp., 18 N.Y.3d 499. 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see New York City Asbestos Litig. v Chevron Corp., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Stonehill Capital Mgt., LLC v Bank of the West, 28 N.Y.3d 439, 45 N.Y.S.3d 864 [2016]).
A failure to comply with the Vehicle and Traffic Law constitutes negligence as a matter of law (see Kerollev Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d387 [2d Dept 2019]; Marks v Rieckhoff 172 A.D.3d 847 101 N.Y.S.3d 63[2d Dept 2019]; Kaziu v Human Care Servs. for Families & Children, Inc., 167A.D.3d588 90N.Y.S.3d 66 [2dDept 2018]). Pursuant to Vehicle and Traffic Law ~ 1141, a vehicle intending to turn left within an intersection must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard (see Brodney v Picini, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]; Ming-Fai Jon v Wager, 165 A.D.3d 1253 87 N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86 N.Y.S.3d 562 [2d Dept 201SV Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]). Thus, a driver who attempts to make a left turn when it is not reasonably safe to do so is in violation of this provision of the Vehicle and Traffic Law (see Foley v Santucci, 135 A.D.3d 813, 23 N.Y.S.3d 338 [2d Dept 2016]; Krajiniak v Jin Y Trading, Inc., 114 A.D.3d 910, 980 N.Y.S.2d 812 [2d Dept 2014]; Ducie v Ippolito, 95 A.D.3d 1067 944 N.Y.S.2d 275 [2d Dept 2012]). Although the operator ofa vehicle with the right-of-way is entitled to assume that other drivers will obey traffic laws requiring them to yield (see Richardson v Cablevision Sys. Corp. 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Jeong Sook Lee-Son v Doe, 170 A.D.3d 973 96 N.Y.S.3d 302 [2d Dept 2019]; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 20191) the driver with the right-of-way also has a duty to keep a proper lookout to avoid collisions with other vehicles (see Matias v Bello, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]; Miron v Pappas 161 A.D.3d 1063 77 N.Y.S.3d 163 [2d Dept 2018]; Mark v New York City Tr. Auth., 150 A.D.3d 980 55 N.Y.S.3d 128 [2d Dept 2017]). Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield the right-of-way is not comparatively negligent for failing to avoid the collision (see Jeong Sook Lee-Son v Doe, supra; Enrique v Joseph, supra; Rohn v Aly, 167 A.D.3d 1054 91 N.Y.S.3d 256 [2d Dept 2018]). To establish prima facie entitlement to judgment as a matter of law on the issue of negligence, a plaintiff is no longer required to show freedom from comparative fault (Rodriguzz v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Heard v Schade, 172 A.D.3d 1335, 99 N.Y.S.3d 666 [2d Dept 2019]; Bloecheev Heritage Catering, Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d424 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Marks v Rieckhofh, supra).
Plaintiff has established his prima facie entitlement to summary judgment on the issue of liability by demonstrating that defendant was negligent, as she violated Vehicle and Traffic Law 91141 (see Brodney v Picinic, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]; Ming-FaiJon v Wager, supra; Giannone v Urdahl, supra; Yu MeiLiu v Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept 2018]; Smith v Fuentes, 158 A.D.3d 731, 68 N.Y.S.3d 739 [2d Dept 2018]). Plaintiff testified that he was operating his motorcycle on Straight Path Road, approaching its intersection with Little East Neck Road. He testified that it was lightly raining at the time, but that he could see the intersection clearly. He testified that there was a traffic signal governing his lane of travel, that it was green as he approached it, and that it remained green at the time of the collision. Plaintiff testified that defendant suddenly turned left from the southbound lanes of Straight Path into his path of travel. He further testified that he attempted to brake, but was unable to avoid the collision, as he only had a "split second" to react. Therefore, the evidence that defendant's vehicle was unable to complete the turn without plaintiffs motorcycle colliding with it shows that defendant violated Vehicle and Traffic Law § 1141 by turning left when it was not reasonably safe to do so (Shashatay v Gavitt, 158 A.D.3d 830, 71 N.Y.S.3d 560 [2d Dept 2018]; Giwa v Bloom, 158 A.D.3d 830, 71 N.Y.S.3d 560 [2d Dept 2018]).
Plaintiff having established prima facie entitlement to summary judgment, the burden now shifts to defendants to submit evidentiary proof in admissible form which raises a triable issue of fact (see Zuckerman v City of New York, supra; Yu Mei Liu v Weihong Liu, supra). Defendant fails to oppose the motion. Therefore, the branch of plaintiff s motion for summary judgment on the issue of liability is granted.
As to the branch of plaintiff s motion seeking to dismiss defendants' affirmative defense of comparative negligence, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law" (Bank of N.Y.v Penalver 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 [2d Dept 2015]; South Poin,, Inc. v Redman, 94 A.D.3d 1086 1087 943 N.Y.S.2d 543 [2d Dept 2012]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference ... [and] if there is any doubt as to the availabiltty of a defense it should not be dismissed" (Fireman's Fund Ins. Co. v Farrel,, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597 [2d Dept 2008]; see Greco v Christoffersen, 70 A.D.3d 769, 896 N.Y.S.2d 363 [2d Dept 2010]).
While a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of New York supra; Bloechee v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra; Marks v Rieckhoff supra; Auguste v Jeter, supra), the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (Poon v Nisano, 162 A.D.3d 804 79 N.Y.S.3d 227 [2d Dept 20181). Plaintiff has established, prima facie, entitlement to the relief requested. Plaintiff has established his prima facie entitlement by demonstrating that he was traveling with the right-of-way and that he attempted evasive maneuvers to avoid the collision (see Richardson v Cablevmon Sys. Corp., supra; Jeong Sook Lee-Son v Doe, supra; Matias v Bello, supra). As defendant has failed to oppose the motion, defendant has failed to raise a triable issue of fact with respect to plaintiffs comparative negligence. Therefore, plaintiffs application to dismiss defendant's affirmative defense is granted.
Accordingly the motion by plaintiff for partial summary judgment on the issue of liability and to dismiss defendant's affirmative defense of culpable conduct is granted.