Opinion
2014-11-21
Nathan McLEOD, Plaintiff–Appellant, v. Mark J. TACCONE, Defendant–Respondent.
Cellino & Barnes, P.C., Rochester (Sareer A. Fazili of Counsel), for Plaintiff–Appellant. Hagelin Kent LLC, Buffalo (Benjamin R. Wolf of Counsel), for Defendant–Respondent.
Cellino & Barnes, P.C., Rochester (Sareer A. Fazili of Counsel), for Plaintiff–Appellant. Hagelin Kent LLC, Buffalo (Benjamin R. Wolf of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained when his bicycle collided with a motor vehicle driven by defendant. The accident occurred while plaintiff was attempting to cross a four-lane road from a side street controlled by a stop sign.
Supreme Court properly granted defendant's motion for partial summary judgment on the issue of plaintiff's negligence. It is well established that, with certain exceptions not relevant here, “a person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle” (Palma v. Sherman, 55 A.D.3d 891, 891, 867 N.Y.S.2d 111; seeVehicle and Traffic Law § 1231), and that “an unexcused violation of the Vehicle and Traffic Law ... constitutes negligence per se” (Long v. Niagara Frontier Transp. Auth., 81 A.D.3d 1391, 1392, 917 N.Y.S.2d 463; see Koziol v. Wright, 26 A.D.3d 793, 794, 809 N.Y.S.2d 350; Holleman v. Miner, 267 A.D.2d 867, 868–869, 699 N.Y.S.2d 840). We conclude that defendant met his initial burden of establishing that plaintiff was negligent as a matter of law, and that plaintiff failed to raise a triable issue of fact ( see Trzepacz v. Jara, 11 A.D.3d 531, 531, 782 N.Y.S.2d 852; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Defendant established that plaintiff violated Vehicle and Traffic Law § 1142(a) by “proceed[ing] into an intersection controlled by a stop sign and fail[ing] to yield the right of way to [defendant's] approaching vehicle” (Trzepacz, 11 A.D.3d at 531, 782 N.Y.S.2d 852; see Hyatt v. Messana, 67 A.D.3d 1400, 1401, 889 N.Y.S.2d 329). Moreover, the accident occurred at night while plaintiff was wearing dark clothing, and he was operating his bicycle without lights or sufficient reflectors in violation of Vehicle and Traffic Law § 1236 ( see Green v. Mower, 302 A.D.2d 1005, 1005, 755 N.Y.S.2d 162, affd.100 N.Y.2d 529, 761 N.Y.S.2d 137, 791 N.E.2d 394; Weise v. Lazore, 99 A.D.2d 919, 920, 473 N.Y.S.2d 43, lv. denied62 N.Y.2d 606, 482 N.Y.S.2d 1023, 472 N.E.2d 327; Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 335, 292 N.Y.S.2d 48).
We further conclude that the court did not abuse its discretion in denying plaintiff's cross motion to preclude testimony by a nonparty witness ( see Charter Sch. for Applied Tech. v. Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1464, 964 N.Y.S.2d 366; Andruszewski v. Cantello, 247 A.D.2d 876, 876–877, 668 N.Y.S.2d 297). “The penalty of preclusion is extreme and should be imposed only when the failure to comply with a disclosure [demand] is the result of willful, deliberate, and contumacious conduct” (Gendusa v. Yu Lin Chen, 71 A.D.3d 1085, 1086, 897 N.Y.S.2d 508; see Maillard v. Maillard, 243 A.D.2d 448, 449, 663 N.Y.S.2d 67; Malcolm v. Darling, 233 A.D.2d 425, 426, 649 N.Y.S.2d 480), or when the moving party is prejudiced by the late disclosure ( see Finnegan v. Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 90 A.D.3d 1676, 1677, 936 N.Y.S.2d 821; Koziarz v. New York City Tr. Auth., 40 A.D.3d 412, 413, 836 N.Y.S.2d 127; Tronolone v. Praxair, Inc., 39 A.D.3d 1146, 1147, 833 N.Y.S.2d 816). Here, plaintiff failed to establish in support of his cross motion either a willful failure to disclose the existence of the nonparty witness or prejudice ( see Finnegan, 90 A.D.3d at 1677, 936 N.Y.S.2d 821; see also Wall v. Shepard, 53 A.D.3d 1050, 1051, 860 N.Y.S.2d 375). The delay in disclosing the witness was the result of an oversight rather than bad faith on the part of defendant, and plaintiff was afforded the opportunity to depose the witness ( see Finnegan, 90 A.D.3d at 1677, 936 N.Y.S.2d 821; Gendusa, 71 A.D.3d at 1086, 897 N.Y.S.2d 508).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.