Opinion
Index Nos. 160894/2017 596027/2020 Motion Seq. No. 001
05-06-2022
HENRY HAY, Plaintiff, v. HARRIS-CAMDEN TERMINAL EQUIPMENT INC., LLOYD M. HUMMELL, Defendant. HARRIS-CAMDEN TERMINAL EQUIPMENT INC., LLOYD HUMMELL Plaintiff, v. NATC Defendant.
Unpublished Opinion
MOTION DATE 03/15/2021
PRESENT: HON. JAMES G. CLYNES PART Justice
DECISION + ORDER ON MOTION
JAMES G. CLYNES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, and following oral argument, plaintiffs motion for summary judgment on liability in his favor and against defendants and for dismissal of the defendants' affirmative defenses of culpable conduct (Defendants' second, third, sixteenth and seventeenth affirmative defenses) is decided as follows:
Plaintiff seeks recovery for injuries sustained as a result of a motor vehicle accident between plaintiff pedestrian and a motor vehicle (a truck), owned and operated by the defendants at the intersection of West 40th Street and 9th Avenue in New York County on November 10, 2017.
Plaintiff established prima facie negligence through the examination before trial testimony of plaintiff and the defendant. Plaintiff testified that he disembarked from a bus facing east that was stopped at the traffic control signal at West 40 Street and 9th Avenue; that West 40th Street is a one-way eastbound road with 4 lanes (two moving middle lanes, two outer lanes for loading and unloading before 7am and for parking); that the bus was stopped in the right moving lane with an unloading truck in the lane to the right of the bus; that there were no vehicles in front of the bus; that the bus was stopped just behind the western edge of the crosswalk at West 40th Street; that after the bus stopped at the light; the driver allowed passengers, including plaintiff, off the bus; that plaintiff recalled two people got off the bus in front of him; that as he stepped off the bus, plaintiff faced the southwest corner of West 40th Street and 9th Ave and that he saw the pedestrian control signal on the southwest corner and it displayed "WALK;" that plaintiff exited the bus, entered crosswalk, turned to face North and began crossing the street toward the northwest corner of the intersection of West 40th Street and 9 Avenue; that another pedestrian was crossing the street in front of plaintiff; that plaintiff was in the third lane of traffic (the left of the two-moving lanes); that plaintiff entered the intersection with the "WALK" sign in his favor and that as he was walking within the crosswalk the light changed to a blinking don't walk signal; that as plaintiff was crossing within the crosswalk, defendants' vehicle struck plaintiffs left leg without warning (no horn or brakes); that the front driver's side wheel of defendants' vehicle struck plaintiff on his left leg and dragged him into the intersection.
The defendant driver testified that he was driving the vehicle as an employee of defendant owner and that he was hauling steel to a construction site when the vehicle struck plaintiff; that just prior to the accident defendant exited the Lincoln Tunnel onto West 40th Street and turned right onto the street and stopped at the intersection for a red light; that defendant was in the left moving lane when stopped for the light; that defendant pulled up to the edge of the crosswalk; that defendant could not see pedestrians within the crosswalk because the vehicle had a blind spot that prevented him from observing pedestrians; defendant driver could not see the crosswalk and could not see the pedestrian control signals; that defendant driver was aware of the blind spot at the front of the vehicle and that defendant proceeded as soon as the traffic control signal turned green; that defendant traveled halfway through intersection into Ninth Ave before he realized that he struck plaintiff; that defendant did not see plaintiff in crosswalk; that defendant first saw plaintiff when he exited the truck and saw plaintiff on the ground; that defendant did not immediately realize that he hit plaintiff; that as he was driving east, defendant heard a scream, continued driving forward; heard a second scream and stopped the truck; that defendant driver did not know where plaintiff was coming from; that defendant completed an accident report for defendant Harris-Camden which states, "Pedestrian was wearing dark clothes and wearing a black ski mask while walking against the cross walk/the light;" that this description was not true; that defendant driver did not see the pedestrian control signal and did not see plaintiff prior to the accident and that it is not accurate to say that he saw plaintiff in dark clothes or that he saw plaintiff crossing in the crosswalk against the pedestrian control signal. The testimony of the plaintiff and defendant driver establish prima facie negligence (See VTL 111 [a] [1]; 1112, Barbieri v Vokoun, 72 A.D.3d 853 [2d Dept. 2010] ["violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se."]; McConnell v Nabozny, 110 A.D.2d 1060 [1st Dept 1985] [defendant's unexcused violation of a statute constitutes negligence per se]). Plaintiff is entitled to summary judgment on liability in his favor and against defendants. The defendant driver did not see plaintiff or the crosswalk and is therefore unable to proffer a non-negligent excuse for his violation of VTL 1111 [a] [1] and 1112 (Id.). Moreover, even if Defendants were able to proffer any evidence of comparative fault on the part of plaintiff, "[defendant's argument that there is an issue of fact as to plaintiffs comparative negligence goes to damages and is not a defense to plaintiffs prima facie case" (Bokum v Sera Security Services, LLC, 165 A.D.3d 535 (1st Dept. 2018) citing, Rodriguez v City of New York, 31 N.Y.3d 312 [2018]). The contention set forth in defendants' attorney affirmation in opposition that plaintiffs timing must be wrong is based upon conjecture and speculation and does not raise an issue of fact sufficient to preclude summary judgment on liability in favor of the plaintiff and against defendants based upon negligence. Accordingly, plaintiffs motion is granted. It is hereby
ORDERED that plaintiffs motion for summary judgment on liability based upon negligence in favor of plaintiff and against defendants and dismissing defendants' second, third, sixteenth, and seventeenth affirmative defenses (culpable conduct, failure to make proper observation and failure to utilize due care) is granted.
This constitutes the Decision and Order of the Court.