Opinion
1309 Index No. 155210/20 Case No. 2023–01705
12-28-2023
Zhi Feng LI, Plaintiff–Appellant, v. Saiful U. KARIM et al., Defendants–Respondents.
Caesar, Napoli & Spivak P.C, New York (Kelsey M. Crowley of counsel), for appellant. Baker, McEvoy & Moskovits, Brooklyn (Marjorie E. Bornes of counsel), for respondents.
Caesar, Napoli & Spivak P.C, New York (Kelsey M. Crowley of counsel), for appellant.
Baker, McEvoy & Moskovits, Brooklyn (Marjorie E. Bornes of counsel), for respondents.
Kern, J.P., Oing, Gesmer, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (James G. Clynes, J.), entered January 25, 2023, which denied plaintiff's motion for summary judgment on the issue of liability and dismissing defendants’ affirmative defense of comparative negligence, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of negligence on the part of defendants through her testimony that defendants were solely responsible for the cab striking her while she was crossing the street within the crosswalk, with the right of way (see Lewis v. Revello, 172 A.D.3d 505, 506, 101 N.Y.S.3d 25 [1st Dept. 2019] ; Perez–Hernandez v. M. Marte Auto Corp., 104 A.D.3d 489, 490, 961 N.Y.S.2d 384 [1st Dept. 2013] ). Even if plaintiff continued to walk after seeing defendants’ vehicle approaching but not yet in the intersection, plaintiff had the right of way and was "entitled to anticipate that [defendant] would obey traffic laws which required [him] to yield" ( Flores v. City of New York, 66 A.D.3d 599, 600, 888 N.Y.S.2d 27 [1st Dept. 2009] [internal quotation marks omitted]).
In opposition, defendants’ arguments that the uncertified police report raised an issue of fact are unavailing. The uncertified police accident report prepared by an officer who did not witness the accident is not admissible for the purposes of establishing the cause of the accident (see Garcia v. BLS Limousine Serv. of N.Y., Inc., 199 A.D.3d 612, 154 N.Y.S.3d 758 [1st Dept. 2021] ). We note that defendant driver had been precluded from offering testimony to dispute plaintiff's account of events because he failed to appear for court ordered depositions.