Opinion
2021–07899 Index No. 707607/19
12-20-2023
Lakhwinder SINGH, respondent, v. Richard JERVIS, et al., appellants.
McGiff Halverson Dooley, LLP, Patchogue, NY (Daniel J. O'Connell of counsel), for appellants. Subin Associates, LLP, New York, NY (Robert J. Eisen of counsel), for respondent.
McGiff Halverson Dooley, LLP, Patchogue, NY (Daniel J. O'Connell of counsel), for appellants.
Subin Associates, LLP, New York, NY (Robert J. Eisen of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated October 7, 2021. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendants’ first, second, sixth, and seventh affirmative defenses.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendants alleging that they were negligent in their ownership and operation of a bus, which struck the plaintiff's vehicle. Subsequently, the plaintiff moved for summary judgment on the issue of the defendants’ liability and dismissing the defendants’ affirmative defenses of, among other things, the plaintiff's comparative fault. In an order dated October 7, 2021, the Supreme Court granted the plaintiff's motion, and the defendants appeal.
"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, 83 N.Y.S.3d 74 ; see Sapienza v. Harrison, 191 A.D.3d 1028, 1029, 142 N.Y.S.3d 584 ). "A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d at 1034, 83 N.Y.S.3d 74 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). "Even though a plaintiff is not 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 the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff" ( Sapienza v. Harrison, 191 A.D.3d at 1029, 142 N.Y.S.3d 584 ; see Crist v. Rosenberger, 219 A.D.3d 569, 195 N.Y.S.3d 28 ).
"A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law" ( Edwards v. J & D Express Serv. Corp., 180 A.D.3d 871, 872, 116 N.Y.S.3d 597 ). Vehicle and Traffic Law § 1128(a) provides that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Furthermore, "[a] driver is bound to see what is there to be seen with the proper use of his or her senses" ( Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92 ).
Here, viewing the evidence in the light most favorable to the defendants, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of the defendants’ liability. Specifically, the evidence demonstrated that the defendant driver Richard Jervis failed to operate the defendants’ bus as nearly as practicable entirely within a single lane and moved from his lane when it was not safe to do so, which resulted in the subject accident (see Vehicle and Traffic Law § 1128[a] ; Jaipaulsingh v. Umana, 208 A.D.3d 765, 174 N.Y.S.3d 413 ; Simon v. Rent–A–Center E., Inc., 180 A.D.3d 1100, 120 N.Y.S.3d 388 ). The plaintiff also established, prima facie, that he was not at fault in the happening of the subject accident (see Castillo v. Unique Roofing of N.Y., Inc., 218 A.D.3d 432, 433, 193 N.Y.S.3d 101 ; Seizeme v. Levy, 208 A.D.3d 809, 811, 174 N.Y.S.3d 421 ; Sapienza v. Harrison, 191 A.D.3d at 1030, 142 N.Y.S.3d 584 ).
In opposition, the defendants failed to raise a triable issue of fact as to either their liability or the plaintiff's alleged culpable conduct. The defendants rely on certain statements by Jervis contained in a certified motor vehicle crash report. Those statements were self-serving and did not fall under any hearsay exception, and therefore were appropriately disregarded by the Supreme Court (see Yassin v. Blackman, 188 A.D.3d 62, 65–67, 131 N.Y.S.3d 53 ; Hazzard v. Burrowes, 95 A.D.3d 829, 831, 943 N.Y.S.2d 213 ).
The defendants’ remaining contention is without merit.
Accordingly, we affirm the order insofar as appealed from.
BRATHWAITE NELSON, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.