Opinion
No. 702476/2012.
08-05-2014
Elvia HEREDIA and Bengigno Perez Astudillo, Plaintiffs, v. Raphael E. NYACK and Rainbow Transit Inc., Defendants.
Opinion
This is a personal injury action in which plaintiff, Elvia Heredia (“plaintiff”), seeks to recover damages for injuries she sustained as a result of a motor vehicle accident that occurred on December 6, 2011, at approximately 9:50 a.m., at the intersection of 30th Street and 14th Avenue, Queens County, New York. At the time of the accident plaintiff was a pedestrian who was struck by the motor vehicle owned by defendant Rainbow Transit, Inc. and operated by defendant, Raphael E. Nyack (“defendant”). It is alleged that as a result of the accident the plaintiff sustained injuries including herniated discs of the cervical spine requiring a cervical diskectomy and spinal fusion.
Plaintiff commenced this action by filing a summons and verified complaint on October 15, 2012. Issue was joined by service of defendant's verified answer dated January 3, 2013. Plaintiff filed a Note of Issue on January 22, 2014. This case is presently on the calendar of the Trial Scheduling Part for August 12, 2014.
The plaintiff now moves, following examinations before trial, for an order pursuant to CPLR 3212(b), granting partial summary judgment in her favor on the issue of liability and for an order setting the matter down for a trial on damages only. In support of the motion, the plaintiff submits an affirmation from counsel, Edward W. Ford, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars and supplemental bill of particulars; a copy of the police accident report; copies of the transcripts of the examinations before trial of the plaintiff and the defendant; an affidavit from the plaintiff; and a sworn statement from an eyewitness, Juan Pablo Beristain.
In her examination before trial, taken on August 13, 2013, the plaintiff, Elvia Heredia, age 36, had significant problems with her memory. For example, she remembered that she graduated high school in Mexico and came to the United States from Guerrero, Mexico in 2001. She did not remember the name of the high school, the year she graduated high school in Mexico, or the year she was married. She did not remember why she came to the Unites States or how she got here. She did not remember where she lived in Mexico, where she met her husband or the year she was married. She has been seeing a psychologist, Dr. Martinez since the accident and she sees Dr. Brown for problems with memory. With regard to the accident, she asserts that she was struck by a school bus. She didn't remember where she was when she was struck or the time from when she first saw the bus to the impact, but she remembers that she was walking in a crosswalk. She remembers going by ambulance to Elmhurst hospital but she does not remember all of the treatment she received for her injuries. She did have an abrasion to the head and she received morphine for her pain. She saw Dr. Merolla for pain to her neck. She was treated with physical therapy and underwent surgery to her neck and ankle.
The plaintiff submits an affidavit dated May 7, 2014, in which she states that the subject accident occurred on December 6, 2011 while she was walking in the pedestrian crosswalk of 30th Avenue at the intersection with 14th Street, Astoria, New York. She states that she was walking in the crosswalk while pushing her son's stroller when the defendant's bus knocked her down to the ground. She states that before entering the intersection she looked in all directions to verify that no vehicles were approaching. She states that she has been advised by her attorney that the defendant violated Vehicle and Traffic law § 1112(a) for failing to yield the right of way while she walked in a pedestrian crosswalk.
The description of the accident prepared by the police officer called to the scene states: “at t/p/o veh No.1(defendant) states he was going straight when he struck pedestrian walking across on the crosswalk. Pedestrian then pushed her child out of the way. Child fell on the pavement. Witness says vehicle # 1 (defendant) did not stop at the stop sign and was driving at a high rate of speed. Driver was issued summons for failing to yield to pedestrian's right of way. P.O. did not witness accident” The police officer's diagram depicts the plaintiff being struck by the bus in a lined crosswalk.
The defendant, Raphael E. Nyack, testified at an examination before trial on December 11, 2013, that he has been employed at Luray's Travel Limited, a company that performs mechanical repairs for buses. He has been employed there since 2006 as parts manager and mechanic. As part of his duties he occasionally takes buses for test drives in Astoria where the company is located. He stated that he was involved in a pedestrian accident on December 6, 2011. He was working at the bus company that day and took a small van-type bus owned by Rainbow Transit Incorporated out in order to pick up a part in Astoria. When he left the yard he was proceeding eastbound on 30th Avenue at a rate of 15 miles per hour. When he came to the stop sign in his direction at 14th Street and 30th Avenue he made a complete stop and looked in all directions. He stated that he didn't see any vehicles and he started to proceed forward. He stated that the bus made contact with the plaintiff in the crosswalk. He stated he first saw the plaintiff five seconds after he took his foot off the brake. The bus was moving at 5 miles per hour. He stated that the plaintiff, who was pushing a stroller was just slightly beyond the crosswalk on the east side of the crosswalk. He stated that the bus had just passed the crosswalk when the plaintiff was struck. She had been walking from his left to his right and crossed in front of the bus. He saw her as she was in the middle of the bus. He pressed the brake and she was struck by the right front of the bus. He stated that although he was looking straight ahead at the time, he did not see plaintiff crossing in front of the bus. When asked if either of her feet were in the crosswalk when the impact occurred he stated that he did not remember. He believed the plaintiff was struck with the bus's right front mirror. He did not feel the impact but he saw the plaintiff on the ground. He stated that he never gave his verison of the accident to the police. He stated that he was issued a summons at the scene for failure to yield the right of way. He pled not guilty and stated that the summons was eventually dismissed. He stated that he did not observe an eyewitness on the street at the time of the accident.
Plaintiff also submits a copy of the affidavit of eyewitness, Juan Pablo Beristain. In his statement the witness states that he was standing on the northwest corner of the intersection of 30th Avenue and 14th Street when he observed a woman crossing 30th Avenue in the pedestrian crosswalk. He states that the woman was more than halfway across the intersection when she was struck by the school bus. Just before being struck she pushed the baby stroller out of the way so that it would not be struck by the bus. He states that the impact caused her to be thrown to the ground and her hair was stuck on the outside of the bus's outside passenger side rearview mirror. He states that in his opinion the bus driver was responsible for the accident for failing to yield the right of way while the woman was crossing the street.
In his affirmation, plaintiff's counsel, Edward W. Ford, Esq. contends that the defendant driver was negligent and breached his duty to the pedestrian by failing to see what was there to be seen in front of him, failing to exercise due care to avoid striking a pedestrian and failing to yield the right of way to a pedestrian who was visible in the street directly front of him. Moreover, counsel contends that as a pedestrian with the right of way and walking in the crosswalk, plaintiff exercised due care as she looked in all directions prior to crossing the street and was entitled as a matter of law to anticipate that the other vehicles would obey the traffic laws that require them to yield. Counsel claims that plaintiff established her prima facie entitlement to summary judgment as a matter of law pursuant to VTL § 1151(a) requiring drivers to yield the right of way to pedestrians crossing the roadway within crosswalks (citing Hamilton v. Kong, 93 AD3d 821 [2d Dept.2012] ; Cavitch v. Mateo, 58 AD3d 592 [2d Dept.2009] ; Rosenblatt v. Venizelos, 49 Ad3d 519 [2d dept.2008] ). Counsel claims that plaintiff is entitled to summary judgment because the evidence shows that it is undisputed that the plaintiff was crossing the roadway in the marked crosswalk when she was struck, that she looked both ways prior to entering the crosswalk, and that the defendant failed to yield the right of way.In opposition, defendant's attorney, Allison N. Fihma, Esq., Esq., contends that the plaintiff testified that she saw the bus before it hit her albeit she did not remember how long before the bus hit her she saw it or where she was standing when she made contact with the bus. Counsel claims that plaintiff's affidavit, prepared after the time of her deposition, in which she recalled looking in all directions before entering the intersection is suspect and raises a question of fact. Counsel claims that the affidavit should be disregarded because it is tailored to create a favorable version of the facts and omits any culpable conduct on the part of the plaintiff. Counsel also points to the testimony of bus driver Nyack in which he stated that plaintiff was not in the crosswalk at the time of the impact and that he did not tell the officer at the scene that plaintiff was in the crosswalk as was reported by the officer in the police accident report, MV–104. In addition, defendant claims that the statement of eyewitness Beristain is not admissible because It was not turned over during discovery and such failure has prejudiced the defendants. Further, defendant claims that there is a question of fact as to culpable conduct on the part of the plaintiff. Counsel contends that the plaintiff has a duty to observe what is there to be seen and to exercise reasonable care when entering a crosswalk. Counsel contends that there is no proof in the record that the plaintiff did exercise reasonable care other than by providing a “sham affidavit.” Counsel claims that if the plaintiff did see the bus she had an obligation to exercise reasonable care while crossing the street. Thus, plaintiff claims that because plaintiff testified that she saw the bus but cannot say how much time or what ability she had to avoid the collision before the impact, the plaintiff's evidence is insufficient to prove that the plaintiff was free from comparable negligence.
Further, counsel claims that the affidavit of the eyewitness does not attest to where the plaintiff looked before being struck by the bus or as to what she saw. Therefore counsel argues that his statement does not diminish the question of fact regarding the plaintiff's comparative fault (citing Roman v. A1 Limousine, Inc., 76 AD3d 552 [2d Dept.2010] ; Yuen Lum v. Wallace, 70 AD3d 1013 [2d Dept.2010] ). Counsel claims that the affidavit stating that she looked prior to crossing is tailored to avoid the consequences of her earlier testimony (citing Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318 [1st Dept.2000] ).
In reply, plaintiff's counsel submits that the plaintiff's affidavit does not contradict any of the plaintiff's prior testimony. Further, plaintiff argues that she presented proof that the non-party witness Mr. Beristain was disclosed in response to defendant's combined demands dated January 23, 2013 and was named as a witness in the police accident report which is in the possession of defense counsel. Therefore, counsel argues tha there is no prejudice to the defendants as they were aware of the existence of the eyewitness for over a year. Counsel claims that the proof sufficiently proves that Ms. Heredia had the right of way in the crosswalk and the fact that she did not remember exactly when she first saw the bus is of no moment.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
To be entitled to summary judgment, the plaintiff must submit evidence that demonstrates that while crossing the street, within the crosswalk and with the pedestrian signal in her favor, the defendant driver violated Vehicle and Traffic Law § 1112(a) by failing to yield the right of way to the pedestrian and that the plaintiff was free from comparative negligence and exercised due care by looking to check for approaching vehicles before entering the intersection (see Martinez v. Kreychmar, 84 AD3d 1037 [2d Dept.2011] ; Klee v. Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept.2009] ).
Here, the proof is sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability, including her freedom from comparative fault. The plaintiff submitted an affidavit stating that she entered the marked crosswalk after looking for approaching traffic and was walking across 30th Avenue at 14th Street within the crosswalk when defendant failed to yield the right of way. The defendant had a statutory duty to yield the right of way to the plaintiff and to use due care to avoid colliding with a pedestrian on the roadway (see Vehicle and Traffic Law §§ 1112(a), 1146 and 1152(a), as well as a common-law duty to see that which she should have seen through the proper use of her senses (see Domanova v. State of New York, 41 AD3d 633 [2007];Larsen v. Spano, 35 AD3d 820 [2d Dept.2006] ). The defendant testified that he did not see the plaintiff in the roadway and did not realize there was an impact until after he saw her on the ground next to the bus (see Dragunova v. Dondero, 305 A.D.2d 449 [2d Dept.2003] ; Garner v. Fox, 265 A.D.2d 525 [2d Dept.1999] ). The plaintiffs presented an affidavit submitted by an eyewitness stating that he saw the plaintiff crossing the intersection while walking in the crosswalk with her baby stroller and that the defendant's bus was proceeding at a high rate of speed, failed to stop and failed to yield the right of way to the plaintiff.
Therefore, this Court finds the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant driver, in violation of Vehicle and Traffic Law § 1112(a), failed to yield the right-of-way to the plaintiff as she was crossing the street within the crosswalk. In addition the plaintiff presented testimony that she exercised reasonable care in crossing the street and was therefore free from comparative fault (see Brown v. Pinkett, 110 AD3d 1024 [2d Dept.2013] ; Moreira v. M.K. Travel & Transp., Inc., 106 AD3d 965 [2d Dept.2013] ; Buchinger v. Jazz Leasing Corp., 95 AD3d 1053 [2d Dept.2013] ; Arazashvilli v. Executive Fleet Mgt., Corp., 90 AD3d 682 [2011];Qamar v. Kanarek, 82 AD3d 860 [2d Dept.2011] ; Martinez v. Kreychmar, 84 AD3d 1037 [2d Dept.2011] ; Klee v. Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept.2009] ; Sulaiman v. Thomas, 54 AD3d 751 [2008];Khan v. Isakov, 2011 N.Y. Slip Op 51355 [Sup. Crt. Qns. Co.2011] ).
In opposition, this Court finds that the defendant failed to meet his burden of demonstrating a material issue of fact which would preclude summary judgment. The affidavit of the eyewitness is admissible for purposes of the motion as the name of the eyewitness was provided to the defendant in response to a demand for discovery and inspection and his name was reported by the officer at the scene in the police report. Further, this court does not find that the plaintiff's affidavit contradicted her testimony at the deposition. She was not asked at the deposition where she was looking before she entered the crosswalk. Therefore, defendant's contention that the plaintiff was comparatively negligent is unsupported and speculative (see Hamilton v. Kong, 93 AD3d 821 [2d Dept.2012] ). This Court finds that the defendant's negligence in failing to yield the right of way to the plaintiff and failing to stop his vehicle prior to making contact with the defendant was the sole proximate cause of the accident (see Benedikt v. Certified Lumber Corporation, 60 AD3d 798 [2d Dept.2009] ; Cuevas v. Chavez, 31 Misc.3d 1218(A)aff'd 94 AD3d 803 [2d Dept.2012).
Accordingly, based on the foregoing, it is hereby
ORDERED, that the plaintiff's motion is granted, and the plaintiffs, ELVUIA HEREDIA AND BENGIGNO PEREZ ASTUDILLO, shall have summary judgment on the issue of liability as against the defendants, RAPHAEL E. NYACK and RAINBOW TRANSIT INC., and the Clerk of Court is authorized to enter judgment accordingly; and it is further,
ORDERED, that this matter shall remain on the trial calendar of the Court on August 12, 2014 for a trial on damages only.