In an action to recover damages for personal injuries, the plaintiff moves for summary judgment, pursuant to CPLR 3212, on the issues of liability:Papers Considered1. Notice of Motion/Affirmation of Marc Reibman, Esq./Exhibits 1-8;2. Affirmation of Claudia M. Eckert, Esq. in Opposition/Exhibits AF;3. Reply Affirmation of Marc Reibman, Esq.DECISION & ORDERFactual and Procedural Background On April 30, 2016, at approximately 10:30 p.m., the plaintiff was crossing Montauk Highway in the Town of Southhampton when he was struck by a vehicle owned and operated by the defendant. Plaintiff commenced this action against defendant with the filing of a summons and complaint.Plaintiff moves for summary judgment on the issue of liability. Plaintiff argues that defendant violated Vehicle and Traffic Law 1146, which states that drivers shall exercise due care to avoid colliding with a pedestrian upon any roadway, and that he was not comparatively negligent.1Plaintiff testified at an examination before trial and submits an affidavit in support of his motion. Plaintiff attests that he had left a restaurant with his daughter and her boyfriend and was crossing Montauk Highway when he was involved in the accident. In that area, Montauk Highway has one lane for through traffic in each direction and runs east and west, separated by a double yellow line. He attests that he walked to the curb, looked east and west and did not see any vehicles approaching. He then walked between some parked cars to the edge of the roadway. Again, he looked both ways, saw no vehicles approaching and began to cross toward the Starbucks parking lot on the other side of the street. Upon reaching the double yellow line, he looked to the right and observed that the traffic light was red for traffic on Montauk Highway. He walked across the westbound lane of Montauk Highway, across the fog stripe, and just on to the shoulder. Plaintiff states that he has no recollection of being struck by the defendant’s vehicle. Plaintiff identified an aerial view photograph of the accident location.Plaintiff also submits the police accident report in support of his motion. The report indicates that the defendant was traveling north on Ocean Road and made a left onto Montauk Highway, when he collided with plaintiff, a pedestrian. Defendant indicated to police that he did not see plaintiff before the accident. The plaintiff was walking across the street, not in the crosswalk. There was a lighted crosswalk approximately sixty feet west of the incident location. The report further indicates that the defendant had suffered a previous illness that affected his balance and reaction time.In opposition, defendant argues that plaintiff’s actions were the sole proximate cause of the accident. At the very least, defendant also argues that issues of fact exist as to plaintiff’s comparative negligence.Defendant testified that on the date of the accident he had a valid temporary license which did not have any restrictions. He described the street lighting in the area of the accident as poor. Defendant was alone in the vehicle and was on his way to a restaurant. He testified that there is a series of traffic lights as he turned left from Ocean Road onto Montauk Highway. When he first approached that intersection the traffic light was green. The speed limit was twenty-five mph. He had just about completed his turn onto Montauk Highway, about thirty-five feet, which took approximately six seconds. Defendant testified that he informed the police that he did not see the pedestrian before the accident occurred. However, he testified that he did not tell the police that he had a previous illness that affected his balance or reaction time. He testified that there is no crosswalk where the accident occurred; the crosswalk is sixty-feet away.Police officer Vincent Brown testified that he prepared the police accident report. He testified that the statements he wrote were not recorded statements, it was the result of his investigation, and the written portion of the report is his own narrative. When asked about the portion of the report that stated that the defendant had a previous illness that affected his balance, Officer Brown testified that was just a generalized statement made by defendant which caused Officer Brown to place defendant’s license up for review. He further testified, “it does not in my eyes have any bearing with what happened with the accident.” Due to the severity of the accident, Officer Brown administered a standardized field sobriety test which defendant performed well and was not found to be under any influence. Officer Brown testified that the defendant did not receive any tickets because “there was nothing he could be cited for.” Officer Brown had no knowledge as to whether the plaintiff had reached the shoulder of the roadway when he was struck. If Officer Brown felt that plaintiff was on the shoulder lines, he would have added that in his report. He testified that he did not believe plaintiff was on the shoulder of the roadway.In reply, plaintiff argues that defendant has no witness to controvert plaintiff’s testimony that he was off the vehicular roadway when struck, and no issues of fact exist preventing summary judgment.DiscussionThe proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d at 853).“Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v. City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v. New York, 49 NY2d at 562).“The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]; see Dykeman v. Heht, 52 AD3d 767, 768 [2d Dept 2008]). Additionally, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant (see Pearson v. Dix McBride, 63 AD3d 895 [2d Dep't 2009]; Brown v. Outback Steakhouse, 39 AD3d 450, 451 [2d Dept 2007]).To be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v. City of New York, ___ NY3d ___, 2018 NY Slip Op 02287 [Apr. 3, 2018]; Edgerton v. City of New York, ___ AD3d ___ [2d Dept April 18, 2018]). Relying on CPLR article 14-A, which abolished contributory negligence in New York and adopted and codified comparative negligence, the Court of Appeals has recently held that placing the burden on plaintiffs to show an absence of comparative fault on a summary judgment motion is inconsistent with the Article 14-A.2 “The legislative history of article 14-A makes clear that a plaintiff’s comparative negligence is no longer a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant” (Rodriguez v. City of New York, 2018 N.Y. LEXIS 793 *10). Indeed, the Rodriguez Court further held that “comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages” (Rodriguez v. City of New York, 2018 N.Y. LEXIS 793 *8).Here, however, Rodgriguez is unavailing to the plaintiff because irrespective of any comparative negligence on his part, the plaintiff failed to demonstrate on his motion for summary judgment that the defendant was negligent as a matter of law (c.f. Galo v. Cunningham, 106 AD3d 865 [2d Dept 2013] [holding that the defendant established his prima facie entitlement to judgment as a matter of law with evidence that the plaintiff ran into the middle of the road, outside of a crosswalk, and into the defendant's lane of travel when the defendant's view of the plaintiff was obstructed, such that the defendant was unable to avoid contact with the plaintiff. In opposition, plaintiff failed to raise a triable issue of fact as to whether the defendant operated his vehicle in a negligent manner]; Johnson v. Lovett, 285 AD2d 627 [2d Dept 2001] [holding that the defendant demonstrated prima facie entitlement to summary judgment where plaintiff stepped out in front of the stopped van directly into the path of the defendant's vehicle, and that the defendant was unable to observe the plaintiff at any time prior to the accident. In opposition, the plaintiff failed to raise a triable issue of fact]).Accordingly, plaintiff’s motion for summary judgment on the issue of liability is DENIED. Counsel for all parties are directed to appear in the Settlement Conference Part, room 1600, on June 5, 2018, at 9:15 a.m.Dated: White Plains, New YorkMay 29, 2018
