Opinion
2016-12039. Index No. 511675/15.
06-28-2017
Christopher HARTH, appellant, v. Roberth W. REYES, et al., respondents.
Vaccaro and White, New York, NY (Adam D. White of counsel), for appellant. Gallo, Vitucci & Klar LLP, New York, NY (Yolanda L. Ayala and Kimberly A. Ricciardi of counsel), for respondents.
Vaccaro and White, New York, NY (Adam D. White of counsel), for appellant.
Gallo, Vitucci & Klar LLP, New York, NY (Yolanda L. Ayala and Kimberly A. Ricciardi of counsel), for respondents.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Toussaint, J.), dated November 9, 2016, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is granted.
On the morning of July 23, 2015, the plaintiff, who was riding a bicycle, was involved in a collision with a vehicle owned by the defendant Corina Transportation and operated by the defendant Robert W. Reyes, incorrectly named herein as Roberth W. Reyes, at the intersection of Wythe Avenue and North 6th Street in Brooklyn. The plaintiff subsequently commenced this action to recover damages for personal injuries. After depositions were conducted, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion, and the plaintiff appeals.
"To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" ( Phillip v. D&D Carting Co., Inc., 136 A.D.3d 18, 22, 22 N.Y.S.3d 75 ; see Ricciardi v. Nelson, 142 A.D.3d 492, 35 N.Y.S.3d 724 ; Bowen v. Farrell, 140 A.D.3d 1001, 34 N.Y.S.3d 165 ; Roberts v. Zirkind, 140 A.D.3d 940, 34 N.Y.S.3d 465 ). Thus, "a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident" ( Phillip v. D&D Carting Co., Inc., 136 A.D.3d at 23, 22 N.Y.S.3d 75 ; see Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 ; Ramos v. Bartis, 112 A.D.3d 804, 977 N.Y.S.2d 315 ; Allen
v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402 ). The issue of comparative fault is generally a question for the jury to decide (see Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ; Regans v. Baratta, 106 A.D.3d 893, 965 N.Y.S.2d 171 ; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270 ). Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault (see Brown v. Mackiewicz, 120 A.D.3d 1172, 992 N.Y.S.2d 314 ; Ramos v. Bartis, 112 A.D.3d at 804, 977 N.Y.S.2d 315 ; Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 966 N.Y.S.2d 167 ).
Here, the evidence submitted on the plaintiff's motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a) (see Velez v. Mandato, 129 A.D.3d 945, 12 N.Y.S.3d 172 ; Sirlin v. Schreib, 117 A.D.3d 819, 985 N.Y.S.2d 688 ). The deposition testimony showed that Reyes struck the rear of the plaintiff's bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants' vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes's negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff's part. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgement on the issue of liability.