Opinion
Index No. 708305/2018 Motion Cal. No. 38 Motion Seq. No. 6
07-25-2023
DO SOK SO AND JOSHUA SO, Plaintiffs, v. BADWAY IDRIS, ASLAM RATHORE, AND MOHAMMAD S. UDDIN, Defendants.
Unpublished Opinion
Motion Date: 6/2/22
Present: HONORABLE MAURICE E. MUIR Justice
MAURICE E. MUIR J.S.C.
The following electronically filed ("EF") documents read on this motion by Joshua So ("Mr. Joshua") for order pursuant to CPLR § 3212 granting summary judgment in favor of plaintiff on the counterclaim, Joshua So dismissing the counterclaim and all cross claims, on the grounds that there are no material questions of law or fact on the issue of liability. Moreover, by Do Sok So ("Mr. Sok") and Joshua So ("Mr. Joshua") (collectively, the "plaintiffs") cross move for an order granting summary judgment pursuant to CPLR § 3212 in favor of Plaintiffs Do Sok So and Joshua So on the counterclaim Joshua So as well as Plaintiff, Do Sok So, bear no liability for the subject accident. Additionally, Badway Idris ("Mr. Idris") cross moves for an order granting him summary judgment on liability pursuant to CPLR § 3212, dismissing all crossclaims together with such other and further relief as to this Court may deem just and proper.
| Papers Numbered | |
| Plaintiff on the Counterclaim Notice of Motion-Affirmation-Exhibits...... | EF 093 - 103 |
| Plaintiffs' Notice of Cross Motion-Affirmation-Exhibits...................... | EF 113-114 |
| Affirmation in Opposition-Exhibits.......................................................... | EF 115 - 117 |
| Badway Idris Notice of Cross Motion-Affirmation-Exhibits................. | EF 125 -135 |
| Affirmation in Opposition-Exhibits.......................................................... | EF 136 - 137 |
| Affirmation in Reply-Exhibits............................................................... | EF 141 -142 |
| Affirmation in Opposition-Exhibits......................................................... | EF 143 - 144 |
Upon the foregoing papers it is ordered that the motion and cross-motions are combined herein for disposition, and determined as follows:
This is an action to recover damages for personal injuries the plaintiffs allegedly sustained in motor vehicle accident on April 2, 2016 - on Water Street at or near its intersection with Maiden Lane, in the county, city and state of New York ("subject accident"). As a result, on May 30, 2018, the plaintiffs commenced the instant action against Badway Idris ("Mr. Idris"), Aslam Rathore ("Mr. Rathore") and Mohammad Uddin ("Mr. Uddin"); and on June 28, 2018, issue was joined.
In support of the main motion, Mr. Jhoshua testified that he had a right of way and had a green traffic light and was completely in his lane while proceeding on southbound Water Street intersecting with Maiden Lane when Mr. Idris was hit by a yellow cab, operated by Mr. Rathore, and then pushed into his vehicle. Moreover, Mr. Idris testified that on the date of the accident, he was driving on Water Street, which is a two-way street with two lanes in each direction, separated by a double yellow line. As he approached the intersection with Maiden Lane, his traffic light was green; and he saw the plaintiffs' vehicle traveling on Water Street in the opposite direction. When he was midway through the intersection, he was T-boned on the right side by Mr. Rathore, who pushed his vehicle across the double yellow line and into the plaintiffs' vehicle. Here, the court finds that the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that they were was not at fault in the happening of the subject accident, (see Rodriguez v. City of New York, 31 N.Y.3d 312 [2018]; Sooklall v. Morisseav-LaFague, 185 A.D.3d 1079 [2d Dept 2020]; Merino v. Tessel, 166 A.D.3d 760 [2d Dept 2018]).
Furthermore, Mr. Sok established his prima facie entitlement to judgment as a matter of law. It is well settled law that "[t]he right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers. (Romain v. City of New York, 177 A.D.3d 590 [2d Dept 2019], citing CPLR § 3212(g); Jung v. Glover, 169 A.D.3d 782 [2d Dept 2019]; Phillips v. D & D Carting Co., Inc., 136 A.D.3d 18 [2d Dept 2015]; Anzel v. Pistorinoi, 105 A.D.3d 784 [2d Dept 2013]). Here, Mr. SoK demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability against the defendants by establishing that Mr. Rathore violated Vehicle and Traffic Law §1110(a) when he entered an intersection against a red traffic light and struck Mr. Idris' motor vehicle. (Wynter v. City of New York, 173 A.D.3d 1122, 1122 [2d Dept 2019]; Kirby v. Lett, 208 A.D.3d 1174 [2d Dept 2022; Balladares v. City of New York, 177 A.D.3d 942 [2d Dept 2019]; Whitehead v. David Rosen Bakery Suppliers, Inc., 208 A.D.3d 533 [2d Dept 2022]). Neither Mr. Idris nor Mr. Rathore submitted an affidavit establishing that Mr. Sok engaged in any culpable conduct, which contributed to the subject accident, (see Phillips v. D & D Carting Co., Inc., 136 A.D.3d 18 [2d Dept 2015]; Lopez v. Suggs, 186 A.D.3d 589 [2d Dept 2020]).
Now the court will address Mr. Idris' cross motion. It is well settled law that "[a] driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110 (a) is negligent as a matter of law" (Wynter v. City of New York, 173 A.D.3d 1122, 1122 [2d Dept 2019]; Kirby v. Lett, 208 A.D.3d 1174 [2d Dept 2022]). "The operator of a vehicle with the right-of-way is entitled to assume that others will obey the traffic laws requiring them to yield" (Pei Ru Guo v. Efkarpidis, 185 A.D.3d 949, 951 [2d Dept 2020]; see Mu-Jin Chen v. Cardenia, 138 A.D.3d 1126, 1127 [2d Dept 2016], but '"a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident'" (Shuofang Yang v. Sanacore, 202 A.D.3d 1120, 1122 [2d Dept 2022], quoting Arias v. Tiao, 123 A.D.3d 857, 858 [2d Dept 2014]; see Fergile v. Payne, 202 A.D.3d 928, 930 [2d Dept 2022]). Nevertheless," 'a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision'" (Elusma v Jackson, 186 A.D.3d at 1327, quoting Foley v. Santucci, 135 A.D.3d 813, 814 [2d Dept 2016]). Here, Mr. Idris established his prima facie entitlement to judgment as a matter of law by submitting transcripts of the parties' deposition testimony, which demonstrated that he was proceeding through the intersection with a green traffic light when Mr. Rathore entered the intersection against a red traffic light, and that Mr. Rathore's conduct was the sole proximate cause of the accident (see Napolitano v. Sanderson, 167 A.D.3d 1024, 1025 [2s Dept 2018]; Joaquin v. Franco, 116 A.D.3d 1009, 1009-1010 [2d Dept 2014]). Mr. Idris, who had the right-of-way, was entitled to assume that Mr. Rathore would obey the traffic law requiring him to yield, and the defendants demonstrated, prima facie, that Mr. Idris was not negligent for failing to avoid the collision since he had only one second to react to Mr. Rathore's vehicle (see Jeong Sook Lee-Son v. Doe, 170 A.D.3d 973, 974 [2d Dept 2019]; Foley v. Santucci, 135 A.D.3d at 814; Joaquin v Franco, 116 A.D.3d at 1010).
Accordingly, it is hereby
ORDERED that Joshua So' motion, pursuant to CPLR § 3212, for summary judgment, dismissing the counterclaim and all cross claims, is granted; and it is further, ORDERED that plaintiffs' cross motion for summary judgment, on the issue of liability, pursuant to CPLR § 3212, is granted; and it is further, ORDERED that Defendant Badway Idris' cross motion for summary judgment, on the issue of liability, pursuant to CPLR § 3212, is granted; and it is further;
ORDERED that the complaint and all cross claims against Defendant Badway Idris are dismissed with prejudice; and it is further, ORDERED that the plaintiffs shall serve a copy of this decision and order with notice of entry upon the parties on or before August 30, 2023.
The foregoing constitutes the Decision and Order of the court.