Summary
holding a driver acted negligently when he opened the door of his car when it was not safe to do so and struck a bicyclist
Summary of this case from Dooley v. United StatesOpinion
14702 Index No. 155102/18 Case No. 2020–04195
11-30-2021
Enrique GARCIA, Plaintiff–Respondent, v. BLS LIMOUSINE SERVICE OF NEW YORK, INC. et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellants. Ginarte Gallardo Gonzalez Winograd, LLP, New York (Joel Celso of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Kathryn M. Beer of counsel), for appellants.
Ginarte Gallardo Gonzalez Winograd, LLP, New York (Joel Celso of counsel), for respondent.
Renwick, J.P., Mazzarelli, Moulton, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Lisa A. Headley, J.), entered October 2, 2020, which granted plaintiff's motion for summary judgment as to liability, unanimously affirmed, without costs.
Plaintiff established prima facie that defendant driver violated Vehicle and Traffic Law § 1214 by opening the door of his vehicle when it was not safe to do so and striking plaintiff's bicycle (see Rincon v. Renaud, 186 A.D.3d 1551, 131 N.Y.S.3d 75 [2d Dept. 2020] ; Tavarez v. Castillo Herrasme, 140 A.D.3d 453, 31 N.Y.S.3d 871 [1st Dept. 2016] ). The driver testified that he opened the door on the side of the vehicle adjacent to moving traffic without looking for oncoming vehicles. Furthermore, plaintiff testified that he had no time to take evasive action before the door of the vehicle struck him (see Perez v. Steckler, 157 A.D.3d 445, 66 N.Y.S.3d 137 [1st Dept. 2018] ; see also Sanchez v. Oxcin, 157 A.D.3d 561, 563–564, 69 N.Y.S.3d 623 [1st Dept. 2018] ).
In opposition, defendants failed to raise an issue of fact as to whether defendant driver violated Vehicle and Traffic Law § 1214 or to offer a nonnegligent explanation for the accident (see Steigelman v. Transervice Lease Corp., 145 A.D.3d 439, 440, 42 N.Y.S.3d 146 [1st Dept. 2016] ; Tavarez, 140 A.D.3d at 453–454, 31 N.Y.S.3d 871 ). Defendants’ assertion that plaintiff was traveling at a high rate of speed before the contact or was too close to their vehicle before the accident is speculative. In any event, comparative negligence is not a defense to a prima facie case but would only affect the amount of damages plaintiff could otherwise recover (see Rodriguez v. City of New York, 31 N.Y.3d 312, 317–318, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ; Silverio v. Ford Motor Co., 183 A.D.3d 470, 471, 121 N.Y.S.3d 869 [1st Dept. 2020] ). The uncertified police accident report prepared by an officer who did not witness the accident is not admissible for the purpose of establishing the cause of the accident (see Kajoshaj v. Greenspan, 88 A.D.2d 538, 450 N.Y.S.2d 311 [1st Dept. 1982] ).