Opinion
No. 100623/10.
2013-01-4
Hasan LJEKPERIC, Plaintiff v. Dina M. DURST, Defendants.
Hecht, Kleeger, Pintel & Damashek, P.C., for Plaintiff. Gordon & Silber, P.C., for Defendants.
Hecht, Kleeger, Pintel & Damashek, P.C., for Plaintiff. Gordon & Silber, P.C., for Defendants.
JOSEPH J. MALTESE, J.
The plaintiff, pedestrian Hasan Ljekperic, moves for an order granting summary judgment pursuant to CPLR § 3212, on the issue of liability. This is an action to recover for alleged personal injuries sustained when the plaintiff was struck by an automobile operated by the defendant as he crossed Hylan Boulevard, in Staten Island, New York. Plaintiff argues that he bears no liability for the injuries, as the defendant was negligent in failing to yield to the right of way of the pedestrian while crossing the street in violation of § 1111(a) and 1112(a) of the Vehicle and Traffic Law. The plaintiff's motion is denied in its entirety.
Facts
This is an action to recover for personal injuries allegedly sustained as a result of a traffic accident where the plaintiff and pedestrian, Hasan Ljekperic (“Ljekperic”) was struck by a vehicle owned and operated by the defendant, Dina M. Durst (“Durst”). On August 1, 2008, the plaintiff was crossing Hylan Boulevard at its intersection with Jefferson Avenue in Staten Island, New York. Plaintiff claims that while crossing the street within the crosswalk, with the right of way, he was struck on his left side by the defendant's vehicle making a left hand turn from Jefferson Avenue onto Hylan Boulevard, resulting in injuries to plaintiff's left ankle. Defendant contends that she never saw anyone in the crosswalk, or observed her vehicle make contact with Ljekperic. Shortly following the incident a police report was taken at the scene.
In regards to this matter, plaintiff submitted a supporting affidavit on September 26, 2012.
Discussion
The plaintiff, Ljekperic, is moving for summary judgment on the issue of liability. To be entitled to summary judgment, the plaintiff must submit evidence that shows while crossing the street, within the crosswalk, and the pedestrian signal in his favor, that the defendant driver violated Vehicle and Traffic Law § 1112(a) and that the plaintiff was free from comparative negligence.
Klee v. Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dep't 2009].
A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact (CPLR § 3212[b] ). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. “Moreover, the parties competing contentions must be viewed in a light most favorable to the party opposing the motion”.
Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.
Marine Midland Bank, N.A., v. Dino, et al., 168 A.D.2d 610 [2d Dept 1990].
As is relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law.
American Home Assurance Co., v. Amerford International Corp., 200 A.D.2d 472 [1st Dept 1994].
On a motion for summary judgment, the function of the court is issue finding, and not issue determination.
Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978];Herrin v. Airborne Freight Corp., 301 A.D.2d 500 [2d Dept 2003].
In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.
Weiner v. Ga–Ro Die Cutting, 104 A.D.2d 331 [2d Dept 1984]. Aff'd 65 N.Y.2d 732 [1985].
Glennon v. Mayo, 148 A.D.2d 580 [2d Dept 1989].
Defendant opposes the plaintiff's motion on the grounds that there are triable issues of fact to be determined. The movant, Ljekperic, claims that he bears no liability for his injuries as he was struck by Durst's vehicle as he crossed the street, within the crosswalk, with the right of way, and was free from comparative negligence. Plaintiff cites to the accident description from the police report to corroborate story. However, the report does not qualify for admission pursuant to CPLR 4518(c), as the moving party has failed to provide foundational testimony establishing its authenticity and accuracy.
The plaintiff also failed to establish in his deposition that he was struck by the defendant's vehicle while crossing the street within the crosswalk. The moving party only proffered this fact by an affidavit, nineteen months after Ljekperic's deposition was taken. Moreover, the defendant testified at her deposition that she never saw anyone in the crosswalk, or observed her vehicle make contact with the plaintiff. These conflicting accounts raise triable issues of fact as to whether plaintiff was in the crosswalk at the time of the accident and had the right of way, and whether plaintiff pedestrian or defendant driver failed to exercise due care to avoid the accident or was negligent in any manner.
Cheul Soo Kang v. Violante, 60 AD3d 991 [2d Dep't 2009].
Wein v. Robinson, 92 AD3d 578 [1st Dept 2012].
For the foregoing reasons, the moving plaintiff has not demonstrated a prima facie case entitling them to a judgment as a matter of law as triable issues of fact exist. As such, the plaintiff's motion is denied.
Accordingly, it is hereby:
ORDERED, that the plaintiff's motion for summary judgment on the issue of liability is denied; and it is further
ORDERED, that the parties shall return to DCM Part 3, 130 Stuyvesant, Place 3rd Floor, on January 28, 2013 at 9:30 a.m. for a Pre–Trial Conference.