Munoz v City of New York

2024 NY Slip Op 31321(U)

April 16, 2024

Supreme Court, New York County

Docket Number: Index No. 150954/2023

Judge: Hasa A. Kingo

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
[FILED: NEW YORK COUNTY CLERK 04/16/2024 04:27 P~ 

NYSCEF DOC. NO. 37 

INDEX NO. 150954/2023 

RECEIVED NYSCEF: 04/16/2024 

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. HASA A. KINGO PART 

Justice 

05M 

---------------------------------------------------------------------------------X INDEX NO. 150954/2023 

LUIS A. MUNOZ, 

Plaintiff, 

- V -

THE CITY OF NEW YORK, NEW YORK CITY 

DEPARTMENT OF FINANCE, NYC SHERIFF 

DEPARTMENT, ADRIAN BAPTISTE 

Defendant. 

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MOTION DATE 05/12/2023 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 

17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31,32 

were read on this motion for SUMMARY JUDGMENT 

Plaintiff, Luis Munoz ("Plaintiff') moves for an order, pursuant to CPLR § 3212, granting 

summary judgment on liability against Defendants the City of New York ("City"), New York City 

Department of Finance ("Finance"), NYC Sheriff Department ("Sheriff'), and Adrian Baptiste 

("Baptiste") ( collectively "Defendants"), and dismissing Defendants affirmative defenses of 

culpable conduct, assumption of risk, government immunity, and invocation of the emergency 

doctrine. Defendants oppose the motion. For the reasons stated herein, Plaintiffs motion is granted 

with respect to liability, and denied with respect to dismissal of Defendants' affirmative defenses. 

BACKGROUND 

On August 31, 2022, Plaintiff sustained personal injuries when he was struck by a motor 

vehicle driven by Baptiste (NYSCEF Doc No. 14, Statement of material facts ,i,i 2-3). At the time 

of the accident Plaintiff was riding an electric scooter southbound on Second A venue within the 

bicycle lane when Baptiste made a left tum from Second A venue onto East 30th Street, striking 

Plaintiff (id. i1 12). 

On September 16, 2022, Plaintiff filed a notice of claim on Defendants and presented for a 

50-h hearing on December 7, 2022 (NYSCCEF Doc No. 13, Davidov affirmation ,i,i 6-7). On 

January 31, 2023, Plaintiff commenced this action to recover damages for serious personal injuries 

sustained because of the accident (id. ,i 8). Issue was joined when Defendants City, Finance, and 

Sheriff served their answer on or about March 30, 2023 (id. ,i 9). Defendants then filed an amended 

verified answer adding Baptiste on April 21, 2023 (id.). On May 2, 2023, Plaintiff filed the instant 

motion. 

150954/2023 MUNOZ, LUIS A. vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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In support of his motion, Plaintiff contends that summary judgment is proper because 

Baptiste violated several provisions of the New York traffic law in the operation of his motor 

vehicle and proximately caused Plaintiff's injuries (id. ,i,i 28-33). Plaintiff asserts that Baptiste's 

unexcused violation of sections 1146(a), 1231, 1112, 1110, and 1141 of the New York Vehicle 

and Traffic Law constitute negligence per se (id.). 

In an affidavit submitted in support of the motion, Plaintiff attests that he was traveling 

southbound on the bicycle lane of Second A venue when he reached the intersection of East 30th 

Street, where he had a steady green light controlling the bicycle lane (NYSCEF Doc No. 20 § 11). 

He further attests that Baptiste, who was driving a black van turning left from the main road of 

Second A venue onto 30th Street, had a flashing yellow light which required him to yield to 

Plaintiff (id. ,i 12). Plaintiff did not see the black van turning left until it struck him in the 

intersection of Second A venue and 30th Street (id. ,i 14). Plaintiff avers that Baptiste failed to take 

evasive actions like swerving, timely braking, or giving other warnings before the collision 

(NYSCEF Doc No. 13, Davidov affirmation ,i 35). In support of the motion, Plaintiff submits the 

notice of claim, 50-h hearing transcript, Plaintiff's affidavit, a certified copy of the police report, 

photographs of Google maps, and a video taken by Plaintiff's counsel depicting the traffic lights 

at the intersection of Second A venue and 30th Street. 

To oppose Plaintiff's motion, Defendants argue that summary judgment is not warranted 

because there are unresolved factual issues regarding comparative fault, the alleged damages 

suffered by Plaintiff, and causation that must be determined by a jury (NYSCEF Doc No. 26, 

Nierman affirmation ,i 3). Defendants aver that Plaintiff's papers do not demonstrate a causal link 

between the incident and the injuries alleged, and that Plaintiff is required to establish both that he 

sustained a serious injury, and that the injury is casually related to the accident (id. ,i 4). Defendants 

also argue that Plaintiff has not shown that he was not negligent, and that Plaintiff has not produced 

admissible evidence demonstrating "his response to the situation presented by Baptiste's execution 

of a left tum onto East 30th Street" from Second Avenue (id. ,i 5). In reply, Plaintiff raises 

procedural defects with Defendants' opposition, namely that Defendants did not submit a response 

to Plaintiff's Statement of Material Facts, and thus fail to refute Plaintiff's facts or raise any 

additional issues of material fact (NYSCEF Doc No. 28, Davidov reply affirmation ,i 3-4). In a 

supplemental response, Defendants assert that the failure to include a response to Plaintiff's 

statement of material facts was inadvertent, (NYSCEF Doc No. 29, Nierman supplemental 

affirmation ,i 2). A response to Plaintiff's statement of material facts is annexed as an exhibit to 

Defendants' reply (NYSCEF Doc No. 30, Response to Plaintiff's statement of facts). Plaintiff 

contends that Defendants' supplemental response is an improper sur-reply, which should be 

disregarded by the court (NYSCEF Doc No. 32, Davidov letter). 

DISCUSSION 

Pursuant to CPLR § 3212(b), a motion for summary judgment "shall be granted if, upon 

all the papers and proofs submitted, the cause of action or defense shall be established sufficiently 

to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR § 

3212[b ]). "The proponent of a motion for summary judgment must demonstrate that there are no 

material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (DallasStephenson v Waisman, 39 AD3d 303,306 [1st Dept 2007]). The movant's burden is "heavy," and 

150954/2023 MUNOZ, LUIS A. vs. THE CITY OF NEW YORK ET AL 

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"on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party" (William J Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 

470, 475 [2013] [internal quotation marks and citation omitted]). Upon a proffer of evidence 

establishing a prima facie case by the movant, the party opposing a motion for summary judgment 

bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of 

material questions of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To be a 

"material issue of fact" it "must be genuine, bona fide and substantial to require a trial" (Leumi 

Financial Corp. v Richter, 24 AD2d 855 [1st Dept 1965]). "A motion for summary judgment 

should not be granted where the facts are in dispute, where conflicting inferences may be drawn 

from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 

[2d Dept 2010][intemal quotation marks and citation omitted]). However, "mere conclusions, 

expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a 

motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). 

A plaintiff in a negligence action moving for summary judgment on the issue of liability 

must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the 

defendant's negligence was a proximate cause of the alleged injuries (Fernandez v Ortiz, 183 

AD3d 443, 443-444 [1st Dept 2020]). The Vehicle and Traffic Law ("VIL") imposes certain 

duties on drivers, which are applicable for the purposes of establishing negligence, and a party's 

violation of the Vehicle and Traffic Law constitutes negligence per se [ Davis v Turner, 132 AD3d 

603 [2015]). 

In support of the motion, Plaintiff has submitted uncontroverted evidence consisting of the 

notice of claim, 50-h hearing transcript, and an affidavit of Plaintiff, all of which collectively 

establish that Plaintiff proceeded in the bicycle lane through the intersection at 30th Street with a 

steady green light when he was struck by Baptiste, who turned left onto 30th Street through a 

flashing yellow light. Defendants have not submitted any evidence that contradicts this sequence 

of events. Nor do they allege that Baptiste proceeded with caution or offer any non-negligent 

explanation for the accident. Accordingly, Defendants fail to raise any issue of fact regarding the 

light sequence at 30th Street and Second Avenue or which party had the right of way. 

Under New York Law, every person riding an electric scooter upon a roadway is afforded 

the same rights and responsibilities as the driver of a vehicle or the rider of a bicycle (Vehicle and 

Traffic Law§ 1281). Pursuant to VIL§ 1141[a]), "[t]he driver of a vehicle intending to tum to 

the left within an intersection ... shall yield the right of way to any vehicle approaching from the 

opposite direction which is within the intersection or so close as to constitute an immediate hazard" 

(Vehicle & Traffic Law§ 1141 [a]). Drivers are also obliged to obey the instructions of any official 

traffic-control device, including traffic lights (Vehicle & Traffic Law § 1110). In the case of a 

flashing yellow light, vehicles "may proceed through the intersection or past such signal only with 

caution" (Vehicle & Traffic Law§ 1113 [b ]). Finally, "[a] driver is negligent if he or she has failed 

to see that which, through the proper use of senses, should have been seen" ( Gabler v Marly Bldg. 

Supply Corp., 27 AD3d 519, 520 [1st Dept 2006]). Had Baptiste proceeded with caution as 

required under the law, he would have seen Plaintiff proceeding through the intersection, giving 

him the opportunity to yield the right of way. By striking Plaintiff in the Intersection when making 

a left tum through a flashing yellow light while Plaintiff was traveling straight through an 

intersection with a steady green light, Baptiste failed to yield the right of way and failed to obey 

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the instruction of the flashing yellow light to proceed with caution, in violation of VIL§ 1141(a) 

and 1110. This constitutes negligence per se, which is sufficient to establish Plaintiff's entitlement 

to summary judgment on the issue of Baptiste's liability (see Voravetvudhikun v Ludlow Garage, 

Inc., 2022 WL 13712490, at *1 [Sup Ct, NY County 2022][plaintiff's motion for summary 

judgment was granted where plaintiff demonstrated prima facie entitlement to judgment as a matter 

oflaw by establishing that the defendant violated Vehicle and Traffic Law§ 1141 when he made 

a left tum directly into the path of the plaintiffs motor scooter as the plaintiff was legally 

proceeding through the intersection with the right-of-way]; see also Moreno v Narul, 2020 WL 

6386020, at *2 [Sup Ct, NY County 2020]["[t]he unrebutted evidence submitted by Plaintiff is 

that as he was in the intersection, defendant, who had been coming in the opposite direction, made 

a left tum and struck him. Clearly, then, defendant failed to 'yield the right of way to any vehicle 

approaching from the opposite direction which is within the intersection or so close as to constitute 

an immediate hazard', as mandated by the statute"]). 

Contrary to Defendants argument that Plaintiff's motion should be denied because Plaintiff 

has not demonstrated his own freedom from comparative negligence, comparative negligence goes 

to the issue of damages, not liability, and Plaintiff is not required to show that he was not negligent, 

or that Defendants were the sole proximate cause of the accident to be entitled to summary 

judgment on liability (Fernandez v Ortiz, 183 AD3d 443, 443-44 [2020]; see Rodriguez v City of 

New York, 31 NY3d 312 [2018] ["to be entitled to partial summary judgment a plaintiff does not 

bear the double burden of establishing a prima facie case of defendant's liability and the absence 

of his or her own comparative fault]). "Any potential issue of comparative negligence ... does not 

restrict a plaintiffs right to partial summary judgment" (Davis v Turner, 132 AD3d 603 [2015]). 

Plaintiff has also moved for summary judgment dismissing Defendants' affirmative 

defenses of culpable conduct, assumption of risk, government immunity, and invocation of the 

emergency doctrine. At this early stage where the City has not had an opportunity to conduct 

discovery, summary judgment on the affirmative defenses is not warranted. Moreover, Plaintiff's 

cursory arguments are insufficient to establishment entitlement to summary judgment as a matter 

oflaw. 

Accordingly, it is 

ORDERED that Plaintiff's motion is granted with regard to liability; and it is further 

ORDERED that Plaintiff's motion is denied with regard to the affirmative defenses of 

culpable conduct, assumption of risk, government immunity, and emergency doctrine of 

Defendants; and it is further 

ORDERED that the Clerk of the Court is directed to set this matter down for a preliminary 

conference in the DCM Part on the next available date; and it is further 

ORDERED that Plaintiff shall, within 20 days from entry of this order, serve a copy of this 

order with notice of entry upon counsel for all parties hereto and upon the Clerk of the General 

Clerk's Office and shall serve and file with said Clerk a note of issue and statement of readiness 

150954/2023 MUNOZ, LUIS A. vs. THE CITY OF NEW YORK ET AL 

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and shall pay the fee therefor, and said Clerk shall cause the matter to be placed upon the calendar 

for such trial before the undersigned; and it is further 

ORDERED that such service upon the General Clerk's Office shall be made in accordance 

with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for 

Electronically Filed Cases (accessible at the "E-Filing" page on the court's website)]. 

This constitutes the decision and order of the court. 

4/16/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

150954/2023 MUNOZ, LUIS A. vs. THE CITY OF NEW YORK ET AL 

Motion No. 001 

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HASAA. KIN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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