Opinion
Index No. 56524/2017
01-09-2019
BLANCA LAZO, Plaintiff, v. JOSE A. NUNEZ-ROMERO, Defendant.
NYSCEF DOC. NO. 38 To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION and ORDER
Motion Sequence No. 1 RUDERMAN, J.
The following papers were considered in connection with plaintiff's motion pursuant to CPLR 3212 for summary judgment on the issue of liability:
| Papers Numbered | |
|---|---|
| Notice of Motion, Affirmation, Exhibits 1 - 10 | 1 |
| Affirmation in Opposition | 2 |
| Reply Affirmation | 3 |
In this action, plaintiff alleges that she sustained injuries as a result of a pedestrian knock-down accident that occurred on November 9, 2016 at approximately 5:50 p.m., on Beekman Avenue at the intersection of Pocantico Street in Sleepy Hollow, New York. Beekman Avenue is a two-way street with one lane of traffic and one parking lane in each direction; at its T-intersection with Pocantico Street, there is a stop sign for traffic moving in each direction, and two crosswalks across Beekman Avenue, one at each of the stop signs at the intersection with Pocantico Street. Plaintiff testified at her deposition that as she stood on the sidewalk at the intersection before beginning to cross Beekman Avenue, she looked to her right and observed defendant's vehicle on Beekman Avenue approaching the intersection, approximately four car lengths up the block. Not seeing any other moving vehicles, she then began to cross the street, in the crosswalk farther from the approaching vehicle. She had already passed the midpoint of Beekman Avenue, and was looking straight ahead as she walked, when she was struck by the right side of defendant's vehicle.
Defendant testified at his deposition that as he drove along Beekman Avenue, he stopped at the stop sign at Pocantico Street, but did not see any pedestrians at either the crosswalk immediately in front of him, or the one on the far side of the intersection. He explained that a black van parked on the right hand side of the street was blocking his view of the part of the far crosswalk on the right side. He stated that he did not see plaintiff before he felt the impact of his collision with her. Defendant also acknowledged that the reporting police officer ticketed him for failing to yield the right-of-way to a pedestrian in a crosswalk; that ticket was ultimately resolved by a plea of guilty to a seat belt violation.
Based on the foregoing showing, plaintiff moves for partial summary judgment against defendant on the issue of liability. Defendants opposes.
Analysis
A plaintiff "establishe[s] prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence indicating that [she] looked both ways before entering a marked crosswalk with the traffic light in [her] favor, that [she] was not comparatively at fault in the happening of the accident, and that [the driver's] failure to yield the right-of-way to [her] was the sole proximate cause of the accident" (see Matyas v New York City Dept. of Sanitation, 159 AD3d 813 [2d Dept 2018]). Plaintiff successfully made such a showing.
In opposition, defendant contends that based on his version of events, a jury could find him not liable. He suggests that there are triable issues of fact as to whether plaintiff was in the crosswalk at the time of the accident, and whether he was required to yield to her, given that he did not see any pedestrians; he adds that there is a question as to whether plaintiff used reasonable care or failed to observe what was there to be seen through the proper use of her senses.
Defendant's arguments fail to establish the existence of an issue of fact precluding partial summary judgment on the issue of his liability. Unlike the evidence submitted in Polanco v Alhassan (104 AD3d 543, 543 [1st Dept 2013]), on which defendant relies, defendant provides nothing of an evidentiary nature contradicting plaintiff's showing that she had been properly walking across the street in the crosswalk, with the right-of-way, when she was struck by the right side of defendant's vehicle. Similarly, this matter is distinguishable from Lezcano-Correa v Sunny's Limousine Serv., Inc. (145 AD3d 766 [2d Dept 2016]), where the Court found an issue of fact as to whether the injured plaintiff was outside the crosswalk when the accident occurred, based on the defendant's testimony that "as he approached the red light, . . . traveling at a speed of approximately two miles per hour, . . . he heard abound against the outside of his vehicle . . . [and] when he stopped and exited his vehicle, he saw that the front of the vehicle had not yet entered the crosswalk" (id. at 767). In contrast, here, defendant's assertion that after the collision he observed plaintiff lying outside the crosswalk fails to demonstrate that she was walking outside the crosswalk before the collision; "the position of plaintiff's body after impact is not probative as to whether she was walking in the cross[]walk prior to being struck" (Torres v Werner Bus Lines, Inc., 157 AD3d 624, 625 [1st Dept 2018]).
Defendant's failure to see plaintiff before the collision does not provide an evidentiary basis from which to infer that she was not there to be seen; "[u]nder the circumstances, the fact that the driver never saw the [plaintiff] does not excuse his conduct" (Domanova v State of New York, 41 AD3d 633, 634 [2d Dept 2007]). In the absence of any affirmative proof that plaintiff was not present on the roadway prior to the moment of impact, there is no issue of fact as to whether defendant breached an obligation to notice, and yield to, the pedestrian plaintiff.
This Court must conclude as a matter of law that plaintiff was knocked to the ground as a result of defendant's breach of his statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Barbieri v Vokoun, 72 AD3d 853, 856 [2d Dept 2010], citing Vehicle &Traffic Law § 1146), as well as his common-law duty to see that which he should have seen through the proper use of his senses (see Domanova v State of New York, 41 AD3d at 634).
Based upon the foregoing, it is hereby,
ORDERED that the branch of plaintiff's motion pursuant to CPLR 3212 for summary judgment on the issue of liability is granted, and it is further
ORDERED that all parties are directed to appear in the Settlement Conference Part on Tuesday, February 26, 2019 at 9:15 a.m., in room 1600 of the Westchester County Courthouse located at 111 Dr. Martin Luther King Jr. Boulévard, White Plains, New York, 10601, to schedule a damages trial.
This constitutes the Decision and Order of the Court. Dated: White Plains, New York
January 9, 2019
/s/_________
HON. TERRY JANE RUDERMAN, J.S.C.