Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Papers Numbered Plaintiff’s Motion for Summary Judgment on Liability, with annexed exhibits (dated February 24, 2021) 1 Defendant’s Opposition to Plaintiff’s Motion, with annexed exhibits (dated March 16, 2021) 2 Plaintiff’s Reply to Defendant’s Opposition (dated March 17, 2021) 3 DECISION and ORDER The plaintiff in this matter, Antonio Fuentes, Jr. (hereinafter, “Plaintiff”), commenced this action against the defendant, Dolores Leon (hereinafter “Defendant”), for personal injury allegedly sustained due to being struck by Defendant’s motor vehicle while riding a bicycle. Plaintiff claims that Defendant was negligent in operating her motor vehicle by failing to observe a stop sign immediately prior to the collision, and now seeks an order granting summary judgment on the issue of liability and striking Defendant’s affirmative defense that Plaintiff was comparatively negligent. Video footage of the incident, captured on a nearby surveillance camera, was submitted to the Court as an exhibit to Plaintiff’s motion. A motion for summary judgment should be granted if “upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” (CPLR 3212). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v. Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [Ct App 1966]). Once the movant has made this showing, 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 (313 43rd St. Realty, LLC v. TMS Enters., LP, 2018 NY Slip Op 05013, 1-2 [2d Dept 2018], citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [Ct App 1986]). It is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of the defendant is established as a matter of law (Ugarriza v. Schmeider, 46 NY2d 471 [Ct App 1979]). However, in certain rare cases a plaintiff may be awarded summary judgment on the issue of a defendant’s negligence where “there is no conflict at all in the evidence” and “the defendant’s conduct fell far below any permissible standard of due care.” (Davis v. Commack Hotel, LLC, 174 AD3d 501, 502 [2d Dept 2019], citing Andre v. Pomeroy, 35 NY2d 361, 364-365 [Ct App 1974]). In the context of a negligence action, a plaintiff must establish that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033 [2d Dept 2018]). The cause of action arose when Defendant’s vehicle struck Plaintiff while making a right-turn from Rockaway Street into the eastbound lane of Hylan Boulevard. Plaintiff was traveling westbound in the eastbound lane of Hylan Boulevard at the moment of impact. The Vehicle and Traffic Law requires that “every driver of a vehicle approaching a stop sign shall stop…and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection” (at 1142 [a]). The law further provides that the driver “shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection” (id. at 1172 [a]). Plaintiff points to the transcript of Defendant’s deposition wherein she states, “I slowed down, but I did not make a full stop, no,” as proof that Defendant breached her duty by failing to obey the stop sign. In her opposition Defendant counters that, while a bicycle rider retains all rights enjoyed by the driver of a motor vehicle, the Vehicle and Traffic Law also requires that he or she is subject to all applicable duties (at 1231). These duties include the requirement that a bicycle be ridden “near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic” (id. at 1234 [a]). Defendant points to the transcript of Plaintiff’s deposition wherein he states that he was riding “against the flow of traffic” to show that Plaintiff’s own negligent conduct was the proximate cause of the collision. The First Department’s ruling in Felix v. Polakoff, cited in Defendant’s opposition, is completely on point (178 AD3d 561 [1st Dept 2019]). In that case, the defendant motorist struck the plaintiff bicyclist while making a right-turn and, as here, the bicyclist was riding against the flow of traffic. The First Department held that although a driver of a motor vehicle has a duty to see what is there to be seen, the defendant motorist was not required to look in the opposite direction of the intersecting one-way street to see if someone was traveling in the wrong direction, and at a speed indicating no intent to stop (id. at 563]). In his reply Plaintiff attempts to distinguish Felix from the instant action, arguing that the defendant motorist in Felix was already in the intersection when the collision occurred. The Court finds this unavailing. The First Department’s opinion reads, “It appears that defendant tapped his brakes before entering the intersection and was increasing his speed when the accident happened.” This description could be effectively used as a narrative to the video footage of the collision in this case, as well. Accordingly, Plaintiff’s motion is hereby DENIED in its entirety. The parties shall appear for the previously scheduled pre-trial conference on July 28, 2021 at 10:20 am via Microsoft Teams. The foregoing constitutes the decision and order of the Court. Dated: July 21, 2021
