Opinion
No. 2023-01254 Index No. 518199/20
05-22-2024
Phoebe Fam Hartell, appellant, v. Waqar Shaukat, respondent.
Steven Louros, New York, NY, for appellant. Nancy L. Isserlis (Zweig Law Firm, P.C., Woodmere, NY [Daniel P. Rifkin], of counsel), for respondent.
Steven Louros, New York, NY, for appellant.
Nancy L. Isserlis (Zweig Law Firm, P.C., Woodmere, NY [Daniel P. Rifkin], of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated December 19, 2022. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the first, fifth, sixth, seventh, eighth, and ninth affirmative defenses.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, fifth, sixth, eighth, and ninth affirmative defenses, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained when she was struck by the defendant's vehicle. After joinder of issue, but prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability and dismissing the defendants' first, fifth, sixth, seventh, eighth, and ninth affirmative defenses. The Supreme Court denied those branches of the motion. The plaintiff appeals.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033-1034; see Rodriguez v City of New York, 31 N.Y.3d 312). "To be entitled to partial summary judgment a plaintiff does not bear the... burden of establishing... the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 N.Y.3d at 324-325). Although a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Hai Ying Xiao v Martinez, 185 A.D.3d 1014, 1014-1015; Wray v Galella, 172 A.D.3d 1446, 1447).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, her own affidavit, which demonstrated that she was a little more than halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was attempting to make a left turn, failed to yield the right-of-way and struck her (see Jordon v Chan, 214 A.D.3d 774, 775-776; Xiuying Cui v Hussain, 207 A.D.3d 788, 789; Maliakel v Morio, 185 A.D.3d 1018, 1019). The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that she exercised due care by confirming that she had the pedestrian signal in her favor and looking for oncoming traffic in all directions before entering the crosswalk and that she was hit from behind by the defendant's vehicle (see Xiuying Cui v Hussain, 207 A.D.3d at 789; Tsang v New York City Tr. Auth., 125 A.D.3d 648, 649; Brown v Mackiewicz, 120 A.D.3d 1172, 1173). However, in opposition, the defendant submitted an affidavit stating that the pedestrian walk signal was red and that the plaintiff suddenly impacted the driver's side rear left portion of the defendant's vehicle. This evidence raised triable issues of fact as to whether the defendant was negligent and whether the plaintiff was comparatively at fault in the happening of the accident (see Hoque v Mehri Trans, Inc., 152 A.D.3d 749; cf. Voskin v Lemel, 52 A.D.3d 503). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendant's seventh affirmative defense, alleging that the plaintiff was comparatively negligent by walking into the path of the defendant's vehicle.
The Supreme Court erred in denying those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first and ninth affirmative defenses, alleging that the plaintiff assumed the risk inherent in being a pedestrian, since the assumption of risk doctrine is inapplicable to a situation where a pedestrian was struck by a vehicle while crossing a street within a crosswalk (see De Diaz v Klausner, 198 A.D.3d 475, 476). The court further erred in denying that branch of the plaintiff's motion which was for summary judgment dismissing the defendant's fifth affirmative defense, alleging the emergency doctrine, as the defendant did not observe the plaintiff until after he struck her with his vehicle (see De Diaz v Klausner, 198 A.D.3d at 476). "Without having perceived or reacted to any emergency, the defendant may not rely on the emergency doctrine to excuse [his] conduct" (Jablonski v Jakaitis, 85 A.D.3d 969, 970). The court further erred in denying those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's sixth affirmative defense, alleging that the plaintiff was comparatively negligent for crossing at a place other than a crosswalk, and eighth affirmative defense, alleging that the plaintiff was comparatively negligent for walking upon an adjacent roadway, as the defendant did not deny that the plaintiff was within the crosswalk at the time of the accident (see Voskin v Lemel, 52 A.D.3d at 503).
Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, fifth, sixth, eighth, and ninth affirmative defenses, alleging assumption of risk, the emergency doctrine, and comparative negligence based upon crossing at a place other than a crosswalk and walking upon an adjacent roadway.
CONNOLLY, J.P., MALTESE, FORD and LOVE, JJ., concur.