Opinion
Index No. 51982/2019 Motion Sequence No. 1
10-08-2020
JORGE MENDEZ-HERNANDEZ, Plaintiff, v. ARUN CHIDAMBARAM, Defendant
Unpublished Opinion
DECISION AND ORDER
HON. TERRY JANE RUDERMAN, J.S.C.
The following papers were considered in connection with plaintiffs unopposed motion for an order granting him summary judgment on the issue of liability, and striking defendant's first affirmative defense (culpable conduct) and fourth affirmative defense (failure to wear a seatbelt):
Papers Numbered
Notice of Motion, Affirmation, Exhibits 1 - 9 1
This personal injury action involves a collision that occurred on May 24, 208, at approximately 4:45 p.m. According to plaintiffs affidavit, he was driving northbound on Worthington Road in Greenburgh, New York, approaching the intersection with County Club Road, with no traffic control devices restricting his travel, when a vehicle heading toward him, on Worthington Road southbound, made a sudden left turn onto Country Club Road, and the two vehicles collided. The southbound vehicle was owned and operated by defendant Arun Chidambaram. The certified police report submitted with the motion indicates that defendant told the reporting police officer that the collision was his fault, and that he became distracted when attempting to make a left turn, and he turned into the path of plaintiff s vehicle.
Plaintiff now moves for an order pursuant to CPLR 3212 granting him partial summary judgment on the issue of liability against defendant, contending that he had the right of way and defendant was negligent based on his violation of Vehicle and Traffic Law § 1141. No opposition has been submitted to the motion, and defendant's deposition testimony, while vague, does not establish a basis for a claim of non-negligenc. Defendant's answer to the complaint includes the affirmative defense of culpable conduct on plaintiffs part.
Analysis
In order to be awarded summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law; with evidentiary proof in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The evidence must be viewed in the light most favorable to the opponents of the motion, and every favorable inference must be afforded to the non-movants (see Gardella v Remizov, 144 A.D.3d 977, 979 [2d Dept 2016]).
Plaintiffs affidavit and his deposition testimony establish a prima facie showing of his entitlement to judgment as a matter of law on the issue of defendant's liability, since these proofs "establish that the sole proximate cause of the subject accident was the defendants] violation of Vehicle and Traffic Law S 1141 in making a left turn when it was not reasonably safe to do so, directly into the pat? of [plaintiff]] oncoming [vehicle] which was lawfully present in the intersection" (see Ducie v Ippolito, 95 A.D.3d 1067, 1067 [2d Dept 2012]). The hearsay statement by defendant driver, as reported in the certified police report, is admissible as a party admission and an admission against interest (see Yassin v Blackman, __ A.D.3d __, 2020 NY Slip Op 05090 [2d Dept 2020]), and it, too, supports plaintiffs prima facie showing of defendant's negligence (see Abramov v Miral Corp., 24 A.D.3d 397 [2d Dept 2005]; Guevara v Zaharakis, 303 A.D.2d 555, 556 [2d Dept 2003]). Notably, the transcript of defendant's deposition fails to demonstrate negligence on the part of any other party, or an explanation establishing defendant's non-negligence. In the absence of opposition to this motion, the lack of any non-negligent explanation entitles plaintiff to the summary judgment he seeks.
While the absence of comparative negligence need not be pleaded and proved by the plaintiff, since it is only relevant to the mitigation of plaintiff s damages (see Rodriguez v City of New York, 31 N.Y.3d 312, 321 [2018]), defendant has not submitted any evidence in support of the culpable conduct affirmative defense he pleaded, while plaintiff has established a prima facie showing of the absence of culpable conduct on his part. Similarly, plaintiff has presented evidence that he was wearing his seatbelt at the time of the accident, and nothing has been submitted to the contrary. Accordingly, in addition to granting summary judgment to plaintiff on the issue of defendant's liability, defendant's affirmative defenses of comparative negligence and failure to wear a seatbelt are dismissed.
Based upon the foregoing, it is hereby
ORDERED that plaintiff s motion for summary judgment against defendants on the issue of liability pursuant to CPLR 3212 is granted and defendant's first and fourth affirmative defenses are dismissed, and it is further
ORDERED that the parties are directed to appear in the Settlement Conference Part of the Westchester Supreme Court, located at 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York, 10601, on a date of which they will be notified by that Part, to schedule a trial on the issue of damages.
This constitutes the decision and order of the Court.