Opinion
Index No. 513211/2022
07-03-2023
Christopher THORSEN, Plaintiff, v. SUNBELT RENTALS, INC. and "John Doe" name fictitious as identity presently unknown, Defendants
The following numbered papers were read on this motion:
NYSCEF Doc No. 9: Notice of Motion for Summary Judgment
NYSCEF Doc No. 10: Statement of Material Facts
NYSCEF Doc No. 11: Affirmation of Monica P. Becker, Esq., in Support of Motion
NYSCEF Doc No. 12: Exhibit A – Summons and Verified Complaint
NYSCEF Doc No. 13: Exhibit B – Verified Answer
NYSCEF Doc No. 14: Exhibit C – Plaintiff's Affidavit
NYSCEF Doc No. 15: Request for Judicial Intervention
NYSCEF Doc No. 16: Affirmation of Carol N. Kitsinis, Esq., in Opposition to Motion
NYSCEF Doc No. 17: Exhibit A – Ainsley Cartagena Affidavit
NYSCEF Doc No. 18: Counter-Statement of Material Facts
NYSCEF Doc No. 19: Memorandum of Law in Opposition
NYSCEF Doc No. 20: Affirmation of Monica P. Becker, Esq., in Reply
Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows.
I. Background
This case arises from an event that transpired on the morning of February 16, 2022, at the intersection of Franklin Street and Eagle Street in the borough of Brooklyn (Kings County), New York. At approximately 9:00 a.m., Plaintiff Christopher Thorsen (hereinafter "Thorsen"), at the indication of the white pedestrian signal, was crossing Franklin Street (a north/south two-way thoroughfare) in a marked crosswalk at the intersection with Eagle Street (a one-way eastbound thoroughfare for vehicular traffic). Of the two crosswalks spanning Franklin Street at the intersection, he was in the southern one, i.e., he was just south of Eagle Street's roadway. As Thorson walked westbound across the marked crosswalk, he was struck by Ainsley Cartagena (hereinafter "Cartagena") as the latter, who had been driving eastbound on the one-way Eagle Street, began a right turn from Eagle Street onto Franklin Street's southbound roadway. Cartagena claims that the presence of an unexpected sun glare obstructed his ability to see any pedestrian as he turned onto Franklin Street. It is undisputed by both parties that Thorsen had the right-of-way and that the vehicle operated by Cartagena which struck him was a trucked owned by Sunbelt Rentals, Inc. (hereinafter "Sunbelt Rentals"), who was Cartagena's employer.
While Thorsen swore that he did not cross Franklin Street until the pedestrian signal changed from red to white (see NYSCEF Doc No. 14, ¶¶18-20), driver Ainsley Cartagena never attested to the status of the traffic control signal governing his travel (see NYSCEF Doc No. 17). While one might presume that Cartagena also had a green signal since both were proceeding in a parallel manner (west/east), "Traffic signals at some intersections give pedestrians a head start to cross the street before car traffic. The goal of these signals is to improve street safety by giving pedestrians a chance to begin crossing the street before cars make turns across the crosswalk" (New York City Department of Transportation, Traffic Signals , https://www.nyc.gov/html/dot/html/infrastructure/signals.shtml [last accessed July 1, 2023]).
Apparently, Cartagena is Defendant "John Doe." Defense counsel appeared only on behalf of Defendant Sunbelt Rentals, Inc.
Plaintiff Thorsen has moved for an order pursuant to CPLR 3212, granting summary judgment against Defendants on the issue of liability; pursuant to CPLR 3211 (b), dismissing Sunbelt Rental's affirmative defenses alleging culpable conduct and contributory negligence; and for such other relief as this Court deems proper.
In terms of that component of Plaintiff's motion which seeks summary judgment against Defendants, this Court notes the well-recited principle that summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Andre v Pomeroy , 35 NY2d 361, 364 [1974] ). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b] ; Smalls v AJI Industries, Inc. , 10 NY3d 733 [2008] ; Alvarez , 68 NY2d at 324 ). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York , 49 NY2d 557 [1980] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos , 46 NY2d 223, 231 [1978] ).
II. Plaintiff Thorsen's Arguments
Thorsen argues that he has established prima facie entitlement to summary judgment as a matter of law. Relying on Andre (35 NY2d 361 ), his arguments center on the contention that Cartagena failed to use due care and to see what there was to be seen, thereby violating several vehicle and traffic laws resulting in his being struck, and thus Cartagena being negligent per se. To satisfy his burden of establishing entitlement to judgment as a matter of law, Thorsen relies on the proposition that a defendant driver has the duty to operate one's motor vehicle with reasonable care, meaning that he should be aware of what is in his view and take into account the actual and potential dangers existing from the conditions on the road to avoid an accident. Thorsen cites to Baker v Close (204 NY 92, 95 [1912] ), and Oberman v Alexander's Rent-A- Car (56 AD2d 814 [1st Dept 1977] ). (See NYSCEF Doc No. 11 ¶¶ 9-11.)
Cartagena admitted he did not see Thorsen crossing at the crosswalk at the time of the accident until he heard a pop near his vehicle as he proceeded to make a right-hand turn (see NYSCEF Doc No. 17 ¶¶ 11, 14). Thorsen contends that, through proper use of his senses, Cartagena should have seen him and been able to avoid the accident, and, therefore, Cartagena was negligent, citing to Bolta v Lohan (242 AD2d 356 [2nd Dept 1997] ) (see NYSCEF Doc No. 11 ¶ 12).
Thorsen maintains that Cartagena's failure to use his senses also constituted a statutory violation of the standard of care imposed by Vehicle and Traffic Law § 1146, which provides, "Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any ... pedestrian ... upon any roadway and shall give warning by sounding the horn when necessary"; also that Cartagena violated the common law duty to do the same, and relied on Barbieri v Vokoun (72 AD3d 853 [2nd Dept 2010] ) (see NYSCEF Doc No. 11 ¶ 13).
Additionally, Thorsen argues that since he was crossing the street with the signal in his favor he had the right of way as against the vehicle driven by Cartagena. Accordingly, he was entitled to anticipate that motorists will obey the traffic laws that require them to yield, as per Wray v Galella (172 AD3d 1446, 1447 [2nd Dept 2019] ). Since it is undisputed that Cartagena did not yield to Thorsen, who had the right of way, this reinforces Thorsen's assertion that Cartagena violated Vehicle and Traffic Law § 1146 and failed to use reasonable care to avoid an accident. Therefore, Cartagena was negligent per se and he, Thorsen, met his prima facie burden of entitlement to judgment as a matter of law (see NYSCEF Doc No. 11 ¶¶ 16-20).
Thorsen then turns to Sunbelt Rentals’ affirmative defenses alleging culpable conduct and contributory negligence. Although a plaintiff need not demonstrate the absence of his own comparative fault to be entitled to partial summary judgment regarding a defendant's liability, Thorsen was also moving for summary judgment dismissing Sunbelt Rentals’ affirmative defenses alleging culpable conduct and contributory negligence, conceding that he must establish that there was no evidence upon which it can be determined that he, Thorsen, bore any liability for the subject accident. He relies on Poon v Nisanov (162 AD3d 804, 808 [2nd Dept 2018] ). (See NYSCEF Doc No. 11 ¶ 22-24.) To meet this burden, Thorsen relies on his own affidavit to establish that he did not enter the intersection abruptly, but rather was "more than halfway" through the intersection when he was struck (see id. , ¶ 26; NYSCEF Doc. No. 14 ¶28). Thus, absent any evidentiary showing in support of Sunbelt Rentals’ allegations in its answer that Thorsen was contributorily negligent or somehow at fault, Sunbelt Rentals’ affirmative defenses to that effect should be dismissed (see NYSCEF Doc No. 11 ¶¶ 27-28).
III. Defendant Sunbelt Rentals’ Arguments
Sunbelt Rentals offers several arguments in opposition to Thorsen's motion for summary judgment. Preliminarily it argues that Thorsen's motion for summary judgment is premature. Sunbelt Rentals cautions that there is insufficient discovery regarding the events leading up to the accident for this Court to make a determination in favor of Thorsen at the summary judgment stage, pointing specifically to the fact that depositions have not yet taken place. Sunbelt Rentals emphasizes that without the aid of the parties’ depositions it will be prejudiced if summary judgment is granted on the basis of an incomplete record. Furthermore, Sunbelt Rentals argues that several issues of material fact exist due to the lack of any depositions, and therefore the Court cannot rely on the evidence currently reflected in the record. Hence, the parties’ differing accounts of the facts leading up to the accident warrant the denial of Thorsen's motion for summary judgment until at least depositions can take place. (See NYSCEF Doc No. 16 ¶ 27.)
Next, Sunbelt Rentals argues that Thorsen did not establish his prima facie entitlement to judgment as a matter of law due to the remaining question of Sunbelt Rentals’ driver's negligence. Sunbelt Rentals claims that Thorsen's omission of facts detailing the events leading up to the accident demonstrate, at the very least, that there is a genuine issue of material fact, namely, whether Sunbelt Rentals’ driver acted reasonably in observing and responding to the conditions around him prior to the accident. (See NYSCEF Doc No. 19 at 8. )
References to Sunbelt Rentals’ memorandum of law are to PDF page numbers.
In that vein, Sunbelt Rentals offers up certain facts from Cartagena's affidavit describing the events leading up to the accident for the purpose of rebutting any presumption that Cartagena was negligent. Before the collision, Cartagena was looking directly in front of him as he traveled eastbound on Eagle Street. Prior to making the right turn, he again looked straight ahead, to his left, and to his right to make sure there were no pedestrians in the crosswalk and did not see anyone there — either at the corner or in the crosswalk. As Cartagena maneuvered the turn, he also looked into his side-view mirrors to ensure that the rear of his truck did not hit any parked vehicles nearby, as it was a very tight area. Additionally, he took care to carefully "inch" into the right turn, not exceeding a rate of two miles per hour. (See NYSCEF Doc No. 17, ¶¶ 10-12.) Sunbelt Rentals asserts that the aforementioned facts prove that Cartagena acted reasonably under the circumstances and took all reasonable steps to avoid an accident. (See NYSCEF Doc No. 16 ¶¶ 23-24.)
Furthermore, Sunbelt Rentals claims that Thorsen's statements in his affidavit, stating that he was traveling due west as he crossed the street, is contradicted according to his own description of the accident and that, instead, he must have been traveling either north or south (see NYSCEF Doc. No. 19 at 10-11).
This claim in Sunbelt Rentals’ memorandum of law (NYSCEF Doc No. 19) is belied by Cartagena's affidavit in which he wrote that "I have been advised that he plaintiff was heading westbound...." (NYSCEF Doc No. 17 ¶ 16). Based on the accounts of Thorsen and Cartagena in their respective affidavits, there is no question but that each was traversing along Eagle Street, an east-west thoroughfare. Thorsen was walking westbound on the southerly side of Eagle Street, crossing the intersection with Franklin Street, a north-south thoroughfare. Cartagena had been driving eastbound on Eagle Street and, in the processing of turning right onto Franklin Street, struck Thorsen. (See NYSCEF Doc No. 14 ¶¶ 6-28; NYSCEF Doc No. 17 ¶¶ 10-14.)
Sunbelt Rentals also points out that, since Cartagena's affidavit stated he never saw anyone in the crosswalk and Thorsen's affidavit claimed that Cartagena was more than halfway across the crosswalk, there is an inconsistency between the affidavits that establishes the existence of divergent accounts of the facts leading up to the collision and raises a genuine issue of fact as to whether Cartagena was negligent (see id. at 11). In Savall v New York City Tr. Auth. (173 AD3d 566 [1st Dept 2019] ), the First Department affirmed the denial of the plaintiff's motion for summary judgment on liability, explaining that triable issues of fact existed as to how the accident occurred since plaintiff and defendant provided conflicting versions of the accident and there were issues of fact as to whether defendant was negligent as well, pointed out Sunbelt Rentals (see id. ).
Additionally, regarding that component of Thorsen's motion seeking dismissal of Sunbelt Rentals’ affirmative defenses of culpable conduct and contributory negligence, Sunbelt Rentals claims that Thorsen failed to meet his initial burden of demonstrating that the affirmative defenses were without merit (see NYSCEF Doc No. 16 ¶ 28). CPLR § 1411 provides that in an action to recover damages for an injury "the culpable conduct attributable to the claimant ... including contributory negligence ... shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant ... bears to the culpable conduct" which caused the damages." Sunbelt Rentals reasons that its affirmative defenses go to Thorsen's damages and mitigation of damages and do not seek to bar recovery; they must necessarily be determined by a jury at trial. (See NYSCEF Doc. No. 19 at 14-15).
Finally, Sunbelt Rentals argues that Cartagena was faced with sun glare at the moment of impact. He braked and placed his vehicle in park. He saw a dog running in the street. (See NYSCEF Doc No. 17 ¶¶ 14-15, 17; NYSCEF Doc No. 16 ¶¶ 16-20; NYSCEF Doc No. 19 at 10.) These circumstances "demonstrate that at a minimum there is an issue of fact whether [Cartagena] acted reasonably in observing and responding to the conditions around him prior to the accident," claimed Sunbelt Rentals (NYSCEF Doc No. 19 at 10).
IV. Discussion
A. Plaintiff Thorsen's Motion for Summary Judgment Is Not Premature
Sunbelt Rentals argues, inter alia, that Thorsen's motion for summary judgment is premature because no depositions have taken place. Thus, we first examine the appropriateness of a motion for summary judgment at this stage of the litigation. A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting its position may exist but cannot then be stated (see Schlichting v Elliquence Realty, LLC, 116 AD3d 689 [2014] ). Admittedly, this is especially so where a motion for summary judgment was made prior to parties conducting depositions (id. ). In other words, summary judgment is inappropriate where there is reason to believe that further discovery may reveal information that raises a genuine issue of fact. Sunbelt Rentals claims that Thorsen must establish how he ended up at the spot where he and the vehicle were at contact — he needs to explain the details of walking his dog which Cartagena observed at some point, what he did after he saw the vehicle, where he was positioned in the lane of traffic, whether he crossed in front of the vehicle as it was inching to make the turn, how he "popped up in front of the truck out of nowhere," and other details (NYSCEF Doc No. 19 at 8).
However, Thorsen swore that he waited 20 seconds prior to entering the crosswalk, looked both ways, did not enter the intersection abruptly, and was over halfway across the intersection when the vehicle struck him (NYSCEF Doc. No. 14 ¶¶ 21-28). Any additional discovery in the form of depositions is unlikely to produce any new facts that support Sunbelt Rentals’ allegations of negligence by Thorsen. Sunbelt Rentals’ statements to the contrary are speculative and merely hopeful (see Kagan v Ameriprise Fin. Servs., Inc. , 191 AD3d 654 [2d Dept 2021] ).
Moreover, summary judgment may not be defeated on the ground that more discovery is needed where, as here, the party advancing such an argument has failed to ascertain the facts due to their own inaction (see Household Bank (SB), N.A. v Mitchell [2d Dept 2004]; Milea v Ames Dept. Store, Inc., 219 AD2d 798, 798 [4th Dept 1995], citing Meath v Mishrick, 68 NY2d 992 [1986] ). In Michaels v Wetsell (255 AD2d 298 [2d Dept 1998] ), it was held that the trial court improperly exercised its discretion in granting the plaintiffs’ request for a continuance after a failure to obtain an affidavit of merit to oppose a summary judgment motion despite an opportunity of six months to do so. In the instance case, summary judgment is not premature because Sunbelt Rentals’ attorney has not established that it sought a deposition of Thorsen during the period of time from being served with the complaint until presently — about a year.
B. Driver Cartagena Is Negligent Per Se
On the merits, Thorsen argues that Cartagena was negligent per se due to his violation of the Vehicle and Traffic Law, as well as due to his violation of his general duty to take reasonable care to avoid an accident. In Barbieri v Vokoun (72 AD3d 853 [2d Dept 2010] ), the Second Department held, in a similar case involving a driver colliding into a pedestrian with the right of way at a crosswalk, that a violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se, citing to Coogan v Torrisi , 47 AD3d 669, 670 [2d Dept 2008] ; Jones v Radeker , 32 AD3d 494, 496 [2d Dept 2006] ; and Lagana v Fox , 6 AD3d 583 [2d Dept 2004] ). Specifically, the defendant violated Vehicle and Traffic Law § 1111 (a) (1), which provides, "Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited."
The Court clarified, "Although a driver facing a steady green light is entitled to proceed, he or she has a duty to yield the right-of-way to pedestrians lawfully within a crosswalk." The Court also noted that, due to the lack of evidence that the pedestrian stepped into the crosswalk "so suddenly and without warning that the defendant could not have avoided the collision in the exercise of due care" ( Barbieri , 72 AD3d at 856 ), a fair interpretation of the evidence could not result in a jury determination absolving the defendant of liability as a matter of law. Id. Although the Barbieri court's decision is distinguishable as being decided in the context of the plaintiff's motion to set aside a jury verdict on appeal, it is still applicable insofar as it establishes that, without any showing of a plaintiff's comparative fault in causing the accident or any evidence disputing a plaintiff's lawful and prudent conduct, a fair interpretation of the evidence will be unable to save a defendant from summary judgment against him when a vehicle collides with a pedestrian lawfully within a crosswalk.
The complaint, answer, and corresponding affidavits by the parties do not dispute that Thorsen was lawfully within the crosswalk, had the right of way, and was more than midway across the crosswalk before Cartagena attempted to make the right turn at the subject intersection. Under Vehicle and Traffic Law § 1111 (a) (1), Cartagena failed to observe his statutory duty to yield the right of way to those lawfully within the intersection or an adjacent crosswalk. Accordingly, Cartagena is negligent per se as it is uncontested that he hit Thorsen in the crosswalk. (See Lieb v Jacobson, 202 AD3d 1072 [2nd Dept 2022] ). Thorsen has satisfied his burden of establishing prima facie entitlement to summary judgment on the issue of liability.
Cartagena is also negligent per se for violating Vehicle and Traffic Law § 1146 (a), which states in relevant part: "[E]very driver of a vehicle shall exercise due care to avoid colliding with any ... pedestrian upon any roadway and shall give warning by sounding the horn when necessary." Section 1146 (b) (2) continues: "If such driver ... causes physical injury while failing to exercise due care in violation of subdivision (a) of this section, then there shall be a rebuttable presumption that, as a result of such failure to exercise due care, such person operated the vehicle in a manner that caused such physical injury." The statute imposes a general duty on motorists to exercise due care to avoid an accident (see Barbieri , 72 AD3d 853 ). In Pei Ru Guo v Efkarpidis (185 AD3d 949 [2d Dept 2020] ), the court noted that this duty includes taking actual and potential dangers on the road into account, as well as seeing what should be seen through the proper use of the senses. In this case, Cartagena failed to see Thorsen, although there is ample evidence that it was sunny, Thorsen had the right of way, Cartagena was "inching" into the turn at no more than two miles per hour, Thorsen was in the crosswalk, and Thorsen was more than halfway across the crosswalk at the time of the accident. Given that these circumstances would permit a reasonably prudent driver to see a pedestrian with the right of way on the roadway, the fact that Cartagena was unable to avoid colliding with Thorsen creates the presumption of Cartagena's negligence. Thorsen has therefore satisfied his burden of showing entitlement to summary judgment as a matter of law (see Lieb v Jacobson , 202 AD3d 1072 [2d Dept 2022] ), and the burden shifted to Sunbelt Rentals to rebut this presumption of negligence (see Macauley v Elrac, Inc. , 6 AD3d 584 [2d Dept 2004] ).
As Cartagena was negligent as a matter of law because he struck a pedestrian who was crossing the street in a crosswalk with the pedestrian crossing signal in his favor, Plaintiff Thorsen's motion for summary judgment was not premature (see Cromer-Walker v Singh , 209 AD3d 832 [2d Dept 2022] ). As such, the protestations that there is more information to be gleaned from Thorsen — how he ended up at the spot where he and the vehicle were at contact, details of walking his dog, what he did after he saw the vehicle, where he was positioned in the lane of traffic, whether he crossed in front of the vehicle as it was inching to make the turn, and how he "popped up in front of the truck out of nowhere" — is unavailing.
C. Defendant Sunbelt Rentals Is Unable to Rebut the Presumption of Negligence
Sunbelt Rentals attempts to satisfy their own burden by referring to the affidavits of the parties for facts contained therein that seek to establish that Cartagena was not negligent, and are supposedly contradictory to the statements contained in Thorsen's affidavit. Sunbelt Rentals concludes that the aforementioned facts prove that Cartagena acted reasonably under the circumstances by taking all reasonable steps to avoid an accident and that there are genuine issues of fact concerning his negligence. When considering a motion for summary judgment, all reasonable inferences must be drawn in favor of the nonmoving party (see Green v Quincy Amusements, Inc. , 108 AD3d 591 [2d Dept 2013] ). Even if Cartagena's statements regarding the events directly leading up to the moment of the accident are taken as true, they do not support the assertion that he was not negligent and do not raise a genuine issue of fact. Although Cartagena claims to have taken steps to enter the intersection safely, they were insufficient since the accident at issue in this case resulted notwithstanding his efforts. The fact that Cartagena crept into the intersection at a slow speed and was vigilant of his surroundings means he should have seen Thorsen and been able to avoid the accident. Therefore, Cartagena is negligent because he failed to reasonably heed his senses in violation of Vehicle and Traffic Law § 1146 (a) to use "due care to avoid colliding with any ... pedestrian" on the road. (See Coogan v Torrisi, 47 AD3d 669 [2nd Dept 2008].) Furthermore, the uncontroverted evidence demonstrates that Cartagena did not yield to Thorsen with the right of way, violating Vehicle and Traffic Law § 1146 (a) and failed to use reasonable care to avoid an accident. Therefore, Cartagena is negligent per se. ( See Bolta v Lohan, 242 AD2d 814 [2nd Dept 1997] ).
Although Sunbelt Rentals asserts that Thorsen, based on the latter's own description of his location at the time of the accident, could not have been walking due west if he was crossing Franklin Street, Sunbelt Rentals misunderstands the events at issue. Eagle Street is a one-way road that goes east and Franklin Street runs north-south. Thorsen was walking west across Franklin Street in the crosswalk, yet located on the southern edge of Eagle Street. As Thorsen walked west across Franklin Street, Cartagena made a right turn onto Franklin Street and hit Thorsen. Thorsen's account of the events is completely consistent with the events that transpired according to Cartagena's own affidavit at paragraphs 10-17 (NYSCEF Doc No. 17):
10. Prior to the accident, I was traveling eastbound on Eagle Street looking straight ahead. I signaled to make a right turn onto Franklin Street.
11. Prior to making the right turn onto Franklin Street, I looked straight, to my left and to my right to make sure there were no pedestrians in the cross-walk before I made my turn. I did not see anyone standing at either corner of Franklin and Eagle Street or proceeding into the cross-walk before I made the turn. I also looked at my side view mirrors to make sure that the rear of my truck did not hit any parked vehicles as this was a very tight area.
12. My vehicle was traveling 2 miles per hour prior to the accident as I carefully inched in to make a right-hand turn onto Franklin Street from Eagle Street.
13. When I made the turn to the right, I was faced with sun glare.
14. My vehicle traveled less than a foot into the southbound lane of Franklin Street as I proceeded to make a right-hand turn, when out of nowhere, I heard a bump and saw the plaintiff unexpectedly pop up near my vehicle in the southbound lane of Franklin. I also saw a dog running in the street. I immediately placed my foot on the brake and put my vehicle in park.
15. It appeared that plaintiff was walking his dog at the time of the accident.
16. I have been advised that the plaintiff was heading westbound when he observed my vehicle inching up on Eagle Street and that he saw that I was attempting to make a right-hand turn onto Franklin Street from Eagle Street before the accident occurred.
17. Following the impact, I got out of the vehicle to check on the plaintiff. I then walked the plaintiff and his dog to the sidewalk to a bench on the north side of Franklin Street.
The sudden appearance of a pedestrian in a crosswalk is not a legally viable defense with respect to a motor vehicle accident (see Hart v Town of North Castle , 305 AD2d 543 [2d Dept 2003] ; Aldrich v Madison Taxi of Buffalo, Inc. , 49 AD2d 1012 [4th Dept 1975] ; Garcia v Romero , 2021 WL 4506896 [Sup Ct, Queens County, Aug. 6, 2021, No. 716117/2020]; Donohue v Singh , 2022 WL 1104001 [Sup Ct, NY County, Apr. 8, 2022, No. 160534/2019] ). That Cartagena did not see Thorsen is also a legally insufficient defense (see Yuemei Wu v Automotive Rentals, Inc. , 157 AD3d 752 [2d Dept 2018] ), especially since Thorsen was more than halfway across the crosswalk (per Cartagena's paragraph 14, Thorsen had already reached the southbound lane of Franklin Street while walking westbound).
Finally, to the extent that Sunbelt Rentals attempts to create an issue of fact based on Cartagena's seeing a dog running in the street (see NYSCEF Doc No. 17 ¶¶ 14, 15, 17; NYSCEF Doc No. 16 ¶ 17; NYSCEF Doc No. 19 at 11) — describing the dog as belonging to Thorsen — this Court finds no such issue warranting denial of summary judgment to Thorsen. Unless vicious, the dog had a right to be in the highway and cannot be deemed a basis for attributing proximate causation of the accident to anyone other than Cartagena; the mere presence of an unrestrained dog on the street does not give rise to a presumption of negligence on the part of its owner (see Young v Wyman , 76 NY2d 1009, affg 159 AD2d 792 [3d Dept 1990] ; accord Nilsen v Johnson , 191 AD2d 930 [3d Dept 1998] ; Rella v Stanley , 2003 NY Slip Op 51404(U) [App Term, 2d Dept, 9th & 10th Dists 2003] ). Just as Cartagena had a duty to see Thorsen, so too did he have the duty to see the dog.
Accordingly, Sunbelt Rentals does not offer any new or existing evidence that shows there is any genuine issue of a material fact so as to dispute that Cartagena was negligent, and thus fails to meet their burden of rebutting the presumption of negligence.
D. Defendant Sunbelt Rentals Unable To Make Prima Facie Showing of Sun Glare Affirmative Defense
Sunbelt Rentals claims that there is an issue of fact as to whether sun glare is a non-negligent excuse as to why Cartagena did not see Thorsen. "There is also an issue of fact as to whether sun glare is a non-negligent excuse as to why Cartagena did not see the Plaintiff," contends Sunbelt Rentals’ counsel (NYSCEF Doc No. 16 ¶ 24); see (NYSCEF Doc No. 19 at 13).
In Lifson v City of Syracuse (17 NY3d 492 [2011] ), the Court of Appeals encountered a similar argument relating to sun glare as a non-negligent excuse for striking a pedestrian. Sunbelt Rentals argues that sun glare can create an emergency situation under certain circumstances (see NYSCEF Doc No. 19 at 13). The Lifson Court described the argument as a variation of the "emergency doctrine," which recognizes that, when a person is faced with a sudden and unexpected circumstance which leaves no time for a thoughtful decision, the actor may not be negligent if the actions taken are reasonable in the emergency context, so long as they did not cause the emergency ( 17 NY3d at 497 ). This doctrine acknowledges that an actor in an emergency situation "cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision" (id. , citing Rivera v New York City Tr. Auth. , 77 NY2d 322, 327 [1991] ).
In Lifson itself, the facts of the case substantially resemble the case at bar. The defendant motorist in Lifson testified that he had to "creep up" in order to see the approaching vehicle at an intersection where he was turning and, as it occurred, the pedestrian was crossing. There was no evidence indicating that the motorist had been traveling at an excessive rate of speed or that the pedestrian had surprisingly or unexpectedly walked out into the roadway or in front of the motorist's vehicle. In Lifson , while the defendant motorist was faced with glare due to the sun setting in the west at 4:05 p.m. in February, driver Cartagena encountered glare from the sun at 9:00 a.m. in February as he was traveling eastbound. In Lifson , the crosswalk at the intersection was not marked, but in the instant case, Thorsen did cross in a marked crosswalk at the intersection of Eagle Street and Franklin Street, which makes a more compelling argument that Cartagena was negligent and should not be permitted to assert the emergency doctrine.
Similarly to the motorist in Lifson , Cartagena asserted that he looked into the crosswalk and cleared the road prior to making the turn but was blinded by the sun: "When I made the turn to the right, I was faced with sun glare" (NYSCEF Doc No. 17 ¶ 13). This caused him to strike Thorsen, which he stated then occurred as follows: "My vehicle traveled less than a foot into the southbound lane of Franklin Street as I proceeded to make a right-handed turn, when out of nowhere, I heard a bump and saw the plaintiff unexpectedly pop up near my vehicle in the southbound lane of Franklin" (id. ¶ 14).
Reversing the Appellate Division's affirmance of a jury instruction on the emergency doctrine, the Court of Appeals in Lifson held that the glare from the sunset that temporarily blinded the motorist when he made a left turn was not a qualifying emergency that could support instruction on the emergency doctrine: "It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one's vision as it nears the horizon at sunset, particularly when one is heading west" ( 17 NY3d at 498 ). The Court of Appeals found that the facts before it were similar to those in Caristo v Sanzone (96 NY2d 172 [2001] ), where it reversed a similar jury instruction on the emergency doctrine since the defendant had been aware of severe weather conditions and therefore the resulting icy conditions on the road could not be considered "sudden and unexpected" as a matter of law (see 17 NY3d at 497-498 ). The court did recognize that there can be circumstances which qualify as an emergency, providing the example of Ferrer v Harris (55 NY2d 285 [1982] ), where a defendant driver who struck a child who unexpectedly ran out into the street merited an emergency doctrine instruction (see 17 NY3d at 498 ).
The trial judge must make the threshold determination whether a reasonable view of the evidence supports the existence of a qualifying emergency (see id. , citing Caristo ). However, even when reviewing the evidence in the light most favorable to Sunbelt Rentals, there is no reasonable view of the record on this instant motion that would yield a determination that a triable issue of fact exists as to whether the sun glare could be considered an emergency situation. A determination must be based on whether the sun glare was sudden and unexpected. (See id. ). Sunbelt Rentals offers no such facts that would lead to such an inference. In fact, there is every indication to the contrary. Given the Court of Appeals’ prior rulings, there is strong reason to resist such a conclusion. In Lifson, the defendant motorist was traveling west into the sunset, which is known to cause glare due to reflections of light as the sun descends into the horizon. The Court of Appeals reasoned that, since glare from the sun can be expected by virtue of the time of day, no one driving through such conditions could be reasonably surprised by the glare. (See id. ) In the instant case, Cartagena was headed east in the morning , meaning the sun had been steadily rising and its illumination of the road and its surroundings was evident and thus to be expected.
In other words, the touchstone of the emergency doctrine is foreseeability (see Lifson, 17 NY3d 492 ; Morales-Rodriguez v MTA Bus Co., 203 AD3d 914 [2d Dept 2022] [no triable issue of fact based on driver's foreseeable encounter with sun glare]; E.B. v Gonzalez, 208 AD3d 618 [2022] [foreseeability of sun glare while driving westbound doesn't qualify as emergency]. Aptly, sun glare from the east holds no more merit as an emergency excuse than sun glare from the west did in Lifson, especially since there is no evidence suggesting the glare was unexpected while driving eastbound at 9:00 a.m. in February (see Mahabir v Evans , 65 Misc 3d 1222[A], 2019 NY Slip Op 51785[U] *2 ["It cannot be considered a sudden and unexpected circumstance that the sun can interfere with one's vision as it rises in the east."] [sun glare in mirror while driving westbound doesn't implicate emergency doctrine defense]). Sunbelt Rentals argued that the evidence regarding the factual issues of the sun glare excuse lies in Thorsen's exclusive control and so summary judgment should not be granted prior to proper discovery. However, it is unreasonable to conclude that any additional information regarding the sun glare would support its viability as an emergency excuse. It would not be in Thorsen's exclusive control since the sun glare would have only affected Cartagena, who faced it. Moreover, Cartagena's recounting of the events of February 16, 2022 on a step-by-step basis yield a conclusion that he inched forward to turn right onto Franklin Street, was faced with sun glare, and traveled less than a foot into the southbound lane of Franklin Street when out of nowhere he heard a bump (see NYSCEF Doc No. 17, ¶¶ 12-14). It certainly was negligent to continue to move after facing sun glare (see Girard v Town of Orangetown , 195 AD3d 902 [2d Dept 2021] [driver heading westbound and blinded by sun glare turned and struck pedestrian in crosswalk]; Rodriguez v Beal , 191 AD3d 617 [1st Dept 2019] [sun glare no defense for driver heading eastbound and striking other vehicle]; Barry v Pepsi-Cola Bottling Co. of NY, Inc. , 130 AD3d 500 [1st Dept 2015] [sunlight temporarily blinding driver not excuse for rear-end collision]; Agramonte v City of NY , 288 AD2d 75 [1st Dept 2001] [defendant driver failed to rebut presumption of negligence when he drove truck while momentarily being blinded by sun]; Bilsky v State of New York , 73 Misc 3d 1219(A), 2021 NY Slip Op 51088(U) [Ct Cl, 2021] [driver proceeded forward in shopping center despite sun glare]).
This Court's research failed to locate a reported postLifson New York decision involving an eastbound driver encountering sun glare and striking a pedestrian in a crosswalk. Therefore, this decision may be the first one to apply Lifson to such a situation.
Furthermore, mere expressions of hope, allegations, or assertions are insufficient to raise a genuine issue of fact (see Zuckerman , 49 NY2d 557 ). Sunbelt Rentals’ argument that there remains a question of fact concerning the sun glare sufficient to avoid summary judgment is conclusory and does not point to a specific, concrete fact which, if true, would permit a reasonable inference that sun glare was in fact sudden and unexpected and thus constitute an emergency situation as a matter of law.
E. Plaintiff Thorsen Also Entitled to Dismissal of Affirmative Defenses Alleging His Culpable Conduct and Contributory Negligence
In its seventh, eighth, thirteenth, fourteenth, and fifteenth affirmative defenses in its answer, Sunbelt Rentals asserted claims that Thorsen was culpable in his conduct and contributorily negligent (see NYSCEF Doc No. 13 at 5-7).
The tenth affirmative defense alleged that any damages sustained by Thorsen were caused and/or brought about by independent, intervening and/or superseding causes. The eleventh affirmative defense alleged that Sunbelt Rentals owed no duty to Thorsen. The twelfth affirmative defense alleged that no acts or omissions of the answering defendant proximately caused any damages. Since Sunbelt Rentals has not alleged that Cartagena operated its truck without permission and it has failed to offer a defense of an independent, intervening or superseding cause of the accident, these affirmative defenses are subject to being dismissed since summary judgment is granted to Thorsen (see Country-Wide Ins. Co. v National R.R. Passenger Corp. , 6 NY3d 172 [2006] ; Derdiarian v Felix Contracting Corp. , 51 NY2d 308 [1980] ; cf. Esen v Narian , 155 AD3d 612 [2d Dept 2017] ).
"Pursuant to CPLR 3211 (b), ‘[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.’ When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense’ ( Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC , 78 AD3d 746, 748 [2010] [internal quotation marks omitted]; see Bank of NY v Penalver , 125 AD3d 796, 797 [2015] ). On a motion pursuant to CPLR 3211 (b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211 (a) (7), and the factual assertions of the defense will be accepted as true (see Bank of NY v Penalver , 125 AD3d at 797 ; Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC , 78 AD3d at 748-749 ). Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (see Fireman's Fund Ins. Co. v Farrell , 57 AD3d 721, 723 [2008] )." ( Wells Fargo Bank, N.A. v Rios , 160 AD3d 912 [2d Dept 2018].) "A defense should not be stricken where there are questions of fact requiring trial" ( 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick , 90 AD3d 541 [1st Dept 2011] ).
Inasmuch as Cartagena was completely at fault for any injuries sustained by Thorsen, based on Cartagena's having entered the crosswalk in which Thorsen was crossing while the pedestrian traffic device was white in Thorsen's favor and also based on Cartagena's having driven despite a foreseeable sun glare, all affirmative defenses alleging culpable conduct and contributory negligence must be stricken (see Cromer-Walker , 209 AD3d 832 ; Morales-Rodriguez, 203 AD3d 914 ). As was stated in Cui v Hussain , 207 AD3d 788, 789 [2d Dept 2022], "To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence (see Rodriguez v City of New York , 31 NY3d 312, 324-325 [2018] ; Maliakel v Morio , 185 AD3d 1018, 1019 [2020] ). Nonetheless, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing an affirmative defense alleging comparative negligence (see Kwok King Ng v West , 195 AD3d 1006, 1007 [2021] ; Hai Ying Xiao v Martinez , 185 AD3d 1014, 1014 [2020] )." The facts in Cui were similar to those in the instant case:
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability. The plaintiff submitted evidence demonstrating that she was approximately halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was making a right turn, failed to yield the right-of-way and struck her, and that the defendant did not see the plaintiff in the crosswalk while making his turn (see Maliakel v Morio , 185 AD3d at 1019 ; Hai Ying Xiao v Martinez , 185 AD3d at 1015 ; Higashi v M&R Scarsdale Rest., LLC , 176 AD3d 788, 790 [2019] ; Huang v Franco , 149 AD3d 703, 703 [2017] ). The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk (see Dunajski v Kirillov , 148 AD3d 991, 992 [2017] ; Gomez v Novak , 140 AD3d 831, 831-832 [2016] ; Martinez v Kreychmar , 84 AD3d 1037, 1038 [2011] ). In opposition, the defendant failed to raise a triable issue of fact as to his negligence or whether the plaintiff was comparatively at fault in the happening of the accident (see generally Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ).
Furthermore, the plaintiff's motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see Maliakel v Morio , 185 AD3d at 1019 ; Rodriguez-Garcia v Bobby's Bus Co., Inc. , 175 AD3d 631, 632 [2019] ; Lazarre v Gragston , 164 AD3d 574, 575 [2018] ). The "mere hope or speculation" that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff's motion ( Lazarre v Gragston , 164 AD3d at 575 ; see Niyazov v Hunter EMS, Inc. , 154 AD3d 954, 955 [2017] ).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense, alleging comparative negligence.
As a matter of law, Thorsen engaged in no culpable conduct and was not contributorily negligent. These defenses are without merit and do not warrant a trial (see Wells Fargo Bank, N.A. , 160 AD3d 912 ; 534 E. 11th St. Hous. Dev. Fund Corp. , 90 AD3d 541 ).
V. Conclusion
On this motion for summary judgment, Plaintiff Thorsen sufficiently established his entitlement as a matter of law to summary judgment on the issue of liability, dismissal of affirmative defenses alleging culpable conduct and contributory negligence, and other proper relief. Defendant Sunbelt Rentals failed to establish a material issue of fact so as to rebut Thorsen's prima facie case.
Accordingly, IT IS HEREBY ORDERED that this Court GRANTS Plaintiff Christopher Thorsen's motion for summary judgment on liability, dismissal of Defendant Sunbelt Rentals, Inc.’s affirmative defenses of culpable conduct and contributory negligence, and the granting of other proper relief. It is hereby declared that Defendants are liable as a matter of law for the subject motor vehicle accident and that Plaintiff Christopher Thorsen bore no culpable conduct or contributory negligence. The seventh, eighth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth affirmative defenses in Sunbelt Rentals, Inc.’s answer are dismissed. Trial of the instant action shall be limited to the amount of damages sustained by Plaintiff Christopher Thorsen.