Opinion
2020–04420 Index No. 712752/17
10-26-2022
Chelsea L. FERGUSON, respondent, v. CITY OF NEW YORK, defendant, Metropolitan Transportation Authority, et al., appellants.
Anna Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants. Gregory Spektor & Associates, P.C., Rosedale, NY (Sol Z. Sokel of counsel), for respondent.
Anna Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants.
Gregory Spektor & Associates, P.C., Rosedale, NY (Sol Z. Sokel of counsel), for respondent.
COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Metropolitan Transportation Authority, New York City Transit Authority, and Kellie A. Lucas appeal from an order of the Supreme Court, Queens County (Joseph Risi, J.), dated May 15, 2020. The order, insofar as appealed from, denied those branches of those defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Transit Authority and Kellie A. Lucas.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On November 12, 2016, a vehicle operated by the plaintiff was involved in an accident with a bus owned by the defendant New York City Transit Authority (hereinafter NYCTA) and operated by the defendant Kellie A. Lucas, an employee of the NYCTA, on Merrick Boulevard, at or near its intersection with Belknap Street, in Queens. The plaintiff commenced the instant action against, among others, the defendant Metropolitan Transportation Authority (hereinafter MTA), NYCTA, and Lucas (hereinafter collectively the transit defendants) to recover damages for personal injuries, alleging, inter alia, that the transit defendants were negligent in, among other things, their ownership and operation of the bus at issue on the date of the accident.
After discovery was complete, the transit defendants moved for summary judgment dismissing the complaint insofar as asserted against them. As to NYCTA and Lucas, the transit defendants argued that summary judgment dismissing the complaint insofar as asserted against them was proper on the grounds that the plaintiff violated Vehicle and Traffic Law §§ 1122 and 1128, and that Lucas was not at fault in the happening of the accident. The Supreme Court, inter alia, denied those branches of the transit defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against NYCTA and Lucas. The transit defendants appeal.
"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Aponte v. Vani, 155 A.D.3d 929, 930, 64 N.Y.S.3d 123 [internal quotation marks omitted]; see Gaudio v. City of New York, 189 A.D.3d 1546, 1547–1548, 140 N.Y.S.3d 102 ). A driver has a duty not to merge into a lane of moving traffic until it is safe to do so, and a violation of this duty constitutes negligence as a matter of law (see Vehicle and Traffic Law § 1128[a] ; Choo v. Virginia Transp. Corp., 204 A.D.3d 743, 744, 164 N.Y.S.3d 473 ; Edwards v. J & D Express Serv. Corp., 180 A.D.3d 871, 872, 116 N.Y.S.3d 597 ).
Here, in support of their motion, the transit defendants established, prima facie, that the plaintiff violated, at a minimum, Vehicle and Traffic Law § 1128(a) and that Lucas was not at fault in the happening of the accident (see Peluso v. Martinez, 136 A.D.3d 769, 770, 24 N.Y.S.3d 731 ).
However, in opposition, the plaintiff raised a triable issue of fact as to whether Lucas was at fault in the happening of the accident. In opposition to the motion, the plaintiff submitted, inter alia, the transcript of her deposition testimony. That deposition testimony, when viewed in the light most favorable to the plaintiff as the nonmovant (see Sage v. Taylor, 195 A.D.3d 971, 146 N.Y.S.3d 496 ; Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63 ), raised a triable issue fact as to whether it was Lucas who violated Vehicle and Traffic Law § 1128(a) (see Qureshi v. Brinks, Inc., 133 A.D.3d 737, 19 N.Y.S.3d 181 ; Kaur v. Demata, 123 A.D.3d 772, 773, 999 N.Y.S.2d 99 ; Gluck v. New York City Tr. Auth., 118 A.D.3d 667, 669, 987 N.Y.S.2d 89 ). Contrary to the transit defendants’ contention, the bus camera video footage of the accident did not unequivocally demonstrate that Lucas was not at fault in the happening of the accident.
Accordingly, the Supreme Court properly denied those branches of the transit defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against NYCTA and Lucas.
DUFFY, J.P., MALTESE, CHRISTOPHER and TAYLOR, JJ., concur.