The following papers read on this motion by defendant seeking summary judgment, dismissing plaintiff’s complaint, on the issue of liability, pursuant to CPLR 3212. Papers Numbered Notice of Motion — Affirmation — Exhibits 1 Affirmation in Opposition 2 Reply Affirmation 3. Upon the foregoing papers, it is ordered that the motion is determined as follows: Pursuant to CPLR 9002, this matter was transferred from Justice Leslie J. Purificacion to the undersigned. However, the undersigned was not provided with the surveillance video from the alleged accident until December 8, 2021. This is an action to recover for personal injuries allegedly sustained by plaintiff in a motor vehicle-pedestrian accident on November 2, 2016, at or near Springfield Boulevard and Hillside Avenue, County of Queens, City and State of New York. It is well-settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]). If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). “In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party” (Boulos v. Lerner-Harrington, 124 AD3d 709 [2d Dept 2015]). Defendant contends that plaintiff was the sole proximate cause of the accident and that defendant was free from fault. Defendant avers that plaintiff violated Vehicle and Traffic Law (VTL) §1151(b), which provides that: “No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.” Defendant further avers that plaintiff violated VTL §1152(a), which provides that: “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.” In opposition, plaintiff argues, among other things, that defendant was negligent in not slowing down while passing a stopped bus. In support of his motion for summary judgment, defendant submits deposition testimony of the parties and a surveillance video of the accident. It is undisputed that a bus was stopped in front of defendant, who was in an adjacent lane, and that the surveillance video is from a school building.1 It is also undisputed that there was no cross walk or traffic light at the location where plaintiff had crossed the road and was struck by defendant’s vehicle. Plaintiff testified that there is a handicap school “right there,” in the vicinity where the accident occurred. Defendant testified that he was driving approximately five miles an hour at the time of the accident. The video footage shows, however, that defendant was driving at a fast rate of speed, contrary to his testimony, and that at the point of impact, plaintiff was thrown more than one car length of distance. There can be more than one proximate cause to an accident and the issue of comparative negligence is generally a question for the jury to decide (Fitzsimmons v. Long, 136 AD3d 738 [2d Dept 2016]). In the case at bar, there is an issue of fact as to whether defendant was driving within the legal limit in a school zone, whether defendant should have slowed down due to a stopped bus, and whether defendant’s speed was a contributing factor to plaintiff’s accident. Accordingly, defendant’s motion for summary judgment on the issue of liability, is denied. Dated: December 21, 2021
