Summary
finding defendant had established prima facie entitlement to judgment as a matter of law by showing plaintiff violated VTL § 1214 by opening car door into oncoming traffic when it was not safe; plaintiff's testimony that passenger was in process of closing the door when it was struck found insufficient to raise a triable issue of fact since plaintiff was unable to state how far the door was open at impact; plaintiff did not submit photos or testimony from the passenger to support theory that bus struck his car
Summary of this case from Reyes v. United StatesOpinion
10786 Index 154726/13
01-16-2020
Anthony SMITH, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Parker Waichman, LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant. Russo & Toner, LLP, New York (Lee–David Weiner of counsel), for respondents.
Parker Waichman, LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.
Russo & Toner, LLP, New York (Lee–David Weiner of counsel), for respondents.
Friedman, J.P., Richter, Kern, Singh, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about October 5, 2017, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendants established their prima facie entitlement to judgment as a matter of law by showing that Vehicle and Traffic Law § 1214 was violated when the passenger in plaintiff's parked car opened the door into oncoming traffic when it was not safe to do so (see Tavarez v. Castillo Herrasme , 140 A.D.3d 453, 31 N.Y.S.3d 871 [1st Dept. 2016] ; see also Perez v. Steckler , 157 A.D.3d 445, 66 N.Y.S.3d 137 [1st Dept. 2018] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant bus driver was negligent in failing to see what was there to be seen in that plaintiff did not dispute that his passenger opened the door into oncoming traffic prior to the collision. Plaintiff's testimony that the passenger was in the process of closing the door when it was struck was insufficient to raise a triable issue of fact since he was unable to state how far the door was open at impact. Plaintiff's argument that his vehicle sustained damage to the right front bumper from the collision, which could not have occurred if the bus driver's account of the accident was accurate, is unavailing. Plaintiff did not submit photographs of his vehicle or testimony from the passenger to support his theory that the bus struck his car as well as the door, and the photographs of the bus are consistent with the bus driver's testimony.