The following numbered papers were read on this motion: Submitted by Plaintiff NYSCEF Doc No. 8: Notice of Motion for Summary Judgment NYSCEF Doc No. 9: Affirmation of Michael Gluck, Esq. in Support NYSCEF Doc No. 10: Statement of Material Facts NYSCEF Doc No. 11: Exhibit A — Plaintiff’s Verified Bill of Particulars NYSCEF Doc No. 12: Exhibit B — Summons and Verified Complaint NYSCEF Doc No. 13: Exhibit C — Verified Answer of Defendant Martin S. Gold NYSCEF Doc No. 14: Exhibit D — Purported Affidavit of Plaintiff Rigoberto Roquel Mendoza; Affirmation of Translation of David A. Bonilla, Esq. NYSCEF Doc No. 15: Exhibit E — Photograph of Plaintiff’s Bicycle To be Submitted by the Court NYSCEF Doc No. 23: Transcript of August 4, 2023 Oral Argument The following documents submitted by Defendant Martin S. Gold on September 15, 2023 (42 days after oral argument), while the within motion was sub judice, are not considered inasmuch as they were not timely filed and no application to accept them or proffer explaining their untimeliness was submitted to this Court (see CPLR 2214, 22 NYCRR 202.8; Aneke v. Parks, 197 AD3d 601 [2d Dept 2021]; Garner v. Rosa Coplon Jewish Home & Infirmary, 189 AD3d 2105 [4th Dept 2020]; Evans v. Perl, 19 Misc 3d 1119[A], 2008 NY Slip Op 50775[U], *5 n 2 [Sup Ct, NY County 2008]; cf. Wilcox v. Newark Valley Cent. School Dist., 107 AD3d 1127 [3d Dept 2013]): NYSCEF Doc No. 17: Affirmation of Michael Nashak, Esq. in Opposition NYSCEF Doc No. 18: Response to Statement of Material Facts NYSCEF Doc No. 19: Exhibit A — Affidavit of Defendant Martin S. Gold NYSCEF Doc No. 20: Exhibit B — Affidavit of John Auricchio The Court takes note of Plaintiff’s objection to Defendant’s late submission set forth in NYSCEF Doc No. 21, the letter of Oliver R. Tobias, Esq. dated September 21, 2023. DECISION AND ORDER Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows. Background This case arises from an event that transpired on January 2, 2022, at or near the intersection of Bay Parkway and East Third Street in the borough of Brooklyn (Kings County), New York. As alleged by Plaintiff Rigoberto Roquel Mendoza (“Plaintiff”), some time between 10:00 PM to 11:00 p.m., he was operating a bicycle on the public road. Near the intersection of Bay Parkway and East Third Street, Bay Parkway was a two-way, four-lane road with two lanes of traffic apportioned to each direction of travel. To the right of the two lanes, in either direction, there existed an unmarked shoulder that was commonly used for street parking. Bay Parkway was not outfitted with a separate marked bike lane for bicyclists to utilize on the road. (See generally NYSCEF Doc Nos. 10, Statement of Material Facts; NYSCEF Doc No. 12, Complaint; NYSCEF Doc No. 14, Plaintiff’s Purported Affidavit.) In Plaintiff’s attached purported affidavit, which will be discussed further below, he purports to have been riding his bike on the right-hand side of Bay Parkway. He was traveling as near as possible to the parked vehicles at the time of the alleged incident. As Plaintiff passed the intersection of Bay Parkway and East Third Street, he observed a Hyundai sedan bearing New York State License Plate Number YAD43 parked in the shoulder and further observed that the vehicle’s lights were off. Plaintiff contends that he attempted to pass the parked Hyundai on the driver’s side. As Plaintiff began to pass the parked vehicle, the driver’s door opened. The driver’s door allegedly struck the front tire of Plaintiff’s bicycle, causing Plaintiff to fall off his bike and strike the ground. The owner of the above-referenced Hyundai is alleged to be Defendant Martin S. Gold (hereinafter “Gold”). (See NYSCEF Doc No. 14, Plaintiff’s Purported Affidavit
2-15.) Plaintiff now moves for an order pursuant to CPLR §3212, granting him partial summary judgment against Defendants on the issue of liability; dismissing Defendant Gold’s affirmative defenses of limitation of liability (second), contributory negligence and culpable conduct (third), assumption of risk (sixth), failure to mitigate damages (seventh), and failure to utilize required safety equipment in violation of VTL §1236 (eighth); and for such other relief as this Court deems proper (see NYSCEF Doc No. 8, Notice of Motion; NYSCEF Doc No. 9, Michael Gluck’s Affirmation). Applicable Legal Standards This Court recognizes the steadfast principle that summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]). Plaintiff’s Arguments Plaintiff argues that he has established prima facie entitlement to summary judgment as a matter of law. Plaintiff cites to New York Vehicle and Traffic Law (“VTL”) §1214 for the proposition, “No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic….” It is Plaintiff’s contention that Defendant John Doe violated VTL §1214 by opening the driver’s side door in front of Plaintiff’s bike. Thus, Plaintiff contends that Defendant Doe did not ascertain the reasonable safety of opening the vehicle door before doing so (see NYSCEF Doc No. 9, Michael Gluck’s Affirmation
