Opinion
Index 809371/2018
08-10-2021
ZOE TUPPEN Plaintiff v. THOMAS A. LEWANDOWSKI, NIAGARA FRONTIER TRANSFORATION AUTHORITY, and NIAGARA FRONTIER TRANSIT METRO SYSTEMS, INC. Defendants
Unpublished Opinion
PRESENT: HON. DIANE Y. DEVLIN Justice Presiding.
DECISION AND ORDER
DIANE Y. DEVLIN JUDGE.
It is hereby ORDERED that Plaintiffs Motion for Summary Judgment is GRANTED in part and DENIED in part.
The Court has read and considered the following papers on these motions:
Notice of Motion-Affirmation-Exhibits Document Numbers 10-24 Opposing Affirmation, Document Numbers 25-32
The Plaintiff files a Complaint alleging a negligence cause of action as a result of an incident that occurred with Defendant's bus on March 7, 2018 when, as a pedestrian, she was struck by a side mirror and knocked down. The bus then traversed over her lower extremities, causing her injuries. Discovery has been conducted and Plaintiffs file a Motion for Summary Judgment on liability, proximate cause, and serious injury. Plaintiff also seeks to strike Affirmative Defenses.
Dept. 2013), Here there are issues of fact with the expert reports as to the happening of the accident and whether Defendant driver's negligence was the sole proximate cause.
According to the record, the Plaintiff was wearing a winter jack with a fur-lined hood while exiting the University Rail Station and walking on the sidewalk adjacent to the Main Circle. At the cross walk she looked to her right and saw a stopped vehicle waiting to turn into the Circle from Main Street. She then looked both ways and proceeded to walk forward and was struck by the bus, which was moving from the inner circle to the outer circle/roadway. The Defendant driver did not come to a complete stop at a stop sign in the circle area, and he testified that he did not see the Plaintiff.
Plaintiff submits an affidavit of Christopher Puckett, an accident reconstruction expert who states that Defendant Lewandowski failed to come to a complete stop at the stop sign then failed to see the Plaintiff and yield the right of way to her. Plaintiff argues that the Defendant driver violated New York State Vehicle and Traffic Law 1146(a), 1151(a), and 1172 and opines that such violations constitute negligence per se. Plaintiff submits video in support.
In opposition to the motion, Defendants submit an affidavit of David Liske who is a Traffic Accident Reconstruction! st with training in forensic collision investigation and reconstruction. Defendants submit video in support. Mr. Liske opines that when Plaintiff entered the crosswalk, Defendant driver was only 19 feet away and Plaintiff was immediately to the right of the bus when she stepped into the crosswalk. In his opinion-based on his investigation and review of Plaintiff s deposition transcript-the Plaintiff looked right on Main Street but failed to engage in a "hard right" look to encompass the inner horseshoe roads where the Defendant bus was traversing.
Plaintiff cites case law where a pedestrian plaintiffs have been granted summary judgment on liability and affirmative defenses dismissed. Defendants cite case law where plaintiff pedestrians can be deemed comparatively negligent or where a pedestrian darts into a Defendant's path.
ANALYSIS
It is undisputed that Plaintiff and Defendant bus came into contact with each other. Defendants have stipulated to serious injury. Plaintiff argues that Defendant driver was negligent by not stopping the bus completely at a stop sign and failing to yield the right of way and such negligence was the sole proximate cause of the accident and injuries.. Defendants argue that negligence is generally for jury determination. Defendants also argue that Plaintiff was required to look with care for oncoming traffic and to see what there was to be seen..
Defendants reconstruction expert opined that when Plaintiff stepped into the crosswalk, it was impractical for the driver to yield and avoid a collision with Plaintiff.
Plaintiffs no longer have to show the court that they are free from comparative negligence in order to obtain partial summary judgment. Rodriguez v. City of New York, 31 N.Y.3d 312. The evidence shows that the driver did not come to a complete stop at the stop sign.
However, Plaintiff crossed a road in an area which includes a major transportation depot, university, and the Main Street artery-and is especially bustling in rush hours. Plaintiff testified that she looked left and right and that her focus was directed on Main Street. She did not look for any vehicles coming out of the horseshoe. "It is not entirely certain that Plaintiff exercised due care in crossing the street such that there may be an element of contributory negligence." Dillon v. Denny, 60 Misc.3d 578. (2018)
In a case involving a motor vehicle and a pedestrian, the Fourth Department found that partial summary judgment on negligence was proper but that the Plaintiff "failed to establish in support of their motion that the Defendants' negligence was the sole proximate cause of the accident, i.e. that there was no comparative negligence on the part of the Plaintiff. Tiwari v. Yo, 106 A.D.3d 1462 (4
The Court GRANTS Plaintiffs Motion for Summary Judgment on liability and that Defendants' negligence was a proximate cause and DENIES that part of the motion for a declaration that Defendants' negligence was the sole proximate cause of the incident. The Court DENIES that part of the motion to strike Defendant's second, third, and fourth affirmative defenses.