Opinion
11490 Index 300764/17
05-14-2020
Eddy Rafael FERNANDEZ, Plaintiff–Appellant, v. Jason H. ORTIZ, et al., Defendants–Respondents.
Altagracia Nunez & Associates, P.C., New York (Jason A. Richman of counsel), for appellant. Cozen O'Connor, New York (Eric J. Berger of counsel), for respondents.
Altagracia Nunez & Associates, P.C., New York (Jason A. Richman of counsel), for appellant.
Cozen O'Connor, New York (Eric J. Berger of counsel), for respondents.
Richter, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about March 20, 2019, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established prima facie entitlement to judgment on liability as a matter of law, in this action where plaintiff was injured when, while riding a bicycle, he was struck by a truck driven by defendant Ortiz and owned by defendant Danella Construction of New York, Inc. The video footage taken from inside defendants' truck shows plaintiff bicycling on the right side of the lane in front of Ortiz before being struck (see Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92 [2d Dept. 2019] ; see also Bermeo v Time Warner Entertainment Co., 162 A.D.3d 404, 74 N.Y.S.3d 861 [1st Dept. 2018] ). Ortiz thus failed to exercise due care to avoid colliding with a bicyclist ( Vehicle and Traffic Law § 1146[a] ), and breached his duty "to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] [internal quotation marks omitted]; see Martinez v. WE Transp. Inc., 161 A.D.3d 458, 76 N.Y.S.3d 152 [1st Dept. 2018] ). Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence nor to show that defendants' negligence was the sole proximate cause of the accident to be entitled to summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).
In opposition, defendants failed raise a triable issue of fact. Ortiz's belief that plaintiff suddenly entered the roadway from the sidewalk near the parked cars, giving him no time to avoid hitting plaintiff, is speculative and contradicted by the video footage (see Guerrero v. Milla, 135 A.D.3d 635, 24 N.Y.S.3d 63 [1st Dept. 2016] ). Furthermore, Ortiz's statement that he did not see the bicycle with any reflective equipment is insufficient to raise triable issues of fact. The statement is contradicted by the video and, in any event, relates to the issue of plaintiff's comparative negligence (see Rodriguez at 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).
The motion is not premature, since defendants would have knowledge of any nonnegligent reason for the collision (see Maynard v. Vandyke, 69 A.D.3d 515, 893 N.Y.S.2d 53 [1st Dept. 2010] ).