### 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.

---------------------------------------------------------------------------------X 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 summaryjudgment on liability against Defendants the City ofNewYork ("City"), NewYork City Department ofFinance ("Finance"), NYC Sheriff Department ("Sheriff'), and Adrian Baptiste ("Baptiste") (collectively "Defendants"), and dismissing Defendants affirmative defenses of culpable conduct, assumption ofrisk, government immunity, and invocation of the emergency doctrine. Defendants oppose the motion. Forthe reasons statedherein, Plaintiffsmotion is granted with respect to liability, and denied with respect to dismissal ofDefendants' 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 ofmaterial facts 

### ,i,i 2-3). Atthe time ofthe accident Plaintiffwas riding an electric scooter southbound on Second Avenue within the bicycle lane when Baptiste made a left tum from Second Avenue onto East 30th Street, striking Plaintiff(id. 

### i1 12). On September 16, 2022, Plaintifffiled a notice ofclaim 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, Plaintiffcommencedthis action to recover damages for serious personal injuries sustained because ofthe accident (id. 

### ,i 8). Issue wasjoined when Defendants City, Finance, and Sheriffservedtheir answer on or aboutMarch 30, 2023 (id. 

### ,i 9). Defendantsthen filed an amended verified answer adding Baptiste on April 21, 2023 (id.). On May 2, 2023, Plaintifffiled the instant motion.

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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). Plaintiffasserts that Baptiste's unexcused violation of sections 1146(a), 1231, 1112, 1110, and 1141 ofthe New York Vehicle and Traffic Law constitute negligenceperse (id.). In an affidavit submitted in support ofthe motion, Plaintiff attests that he was traveling southbound on the bicycle lane ofSecond Avenue when he reached the intersection ofEast 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 Avenue 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 ofSecondAvenue and 30th Street (id. 

### ,i 14). Plaintiffavers 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 ofthe motion, Plaintiffsubmits the notice ofclaim, 50-h hearing transcript, Plaintiff's affidavit, a certified copy ofthe police report, photographs ofGoogle maps, and a video taken by Plaintiff's counsel depicting the traffic lights at the intersection ofSecond Avenue and 30th Street. To oppose Plaintiff's motion, Defendants argue that summaryjudgment 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 ajury (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 Plaintiffis required to establish both that he sustained a serious injury, and thatthe injuryis casuallyrelatedto the accident (id. 

### ,i4). Defendants also argue thatPlaintiffhas not shown thathe was notnegligent, and thatPlaintiffhas notproduced admissible evidence demonstrating "hisresponse to the situation presentedby Baptiste'sexecution of a left tum onto East 30th Street" from Second Avenue (id. ,i 5). In reply, Plaintiff raises procedural defects with Defendants' opposition, namely thatDefendants did not submit aresponse to Plaintiff's Statement of Material Facts, and thus fail to refute Plaintiff's facts or raise any additional issues ofmaterial 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 ofmaterial 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 bythe court (NYSCEF Doc No. 32, Davidov letter). DISCUSSION Pursuant to CPLR § 3212(b), a motion for summaryjudgment "shall be granted if, upon all the papers and proofs submitted, the cause ofaction 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 ofa motion for summaryjudgment must demonstrate that there are no material issues offact in dispute, and that it is entitled tojudgment as a matter oflaw" (DallasStephenson v Waisman, 39 AD3d 303,306 [1stDept 2007]). The movant's burden is "heavy," and

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"on a motion for summaryjudgment, facts mustbe viewed in the light most favorable to the nonmoving party" (William J JenackEstateAppraisers andAuctioneers, Inc. vRabizadeh, 22 NY3d 470, 475 [2013] [internal quotation marks and citation omitted]). Upon a proffer of evidence establishing aprima facie casebythe movant, the party opposing a motion for summaryjudgment bears the burden ofproducing evidentiary proofin 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 offact" 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 ofcredibility" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010][intemal quotation marks and citation omitted]). However, "mere conclusions, expressions ofhope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summaryjudgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A plaintiffin a negligence action moving for summaryjudgment on the issue ofliability must establish,prima facie, that the defendant breached a duty owed to the plaintiffand 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 ofestablishing negligence, and a party's violation ofthe Vehicle and Traffic Law constitutes negligenceperse [ Davis v Turner, 132 AD3d 603 [2015]). In support ofthe motion, Plaintiffhas submitteduncontroverted evidence consisting ofthe notice of claim, 50-h hearing transcript, and an affidavit of Plaintiff, all of which collectively establish that Plaintiffproceeded 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 offact regarding the light sequence at 30th Street and Second Avenue orwhich partyhad the right ofway. Under New York Law, every person riding an electric scooterupon a roadway is afforded the same rights andresponsibilities as the driver ofa vehicle orthe rider ofa 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 ofway to any vehicle approaching from the opposite directionwhichis withinthe intersection or so close as to constitute an immediatehazard" (Vehicle & TrafficLaw§ 1141 [a]). Drivers are also obligedto obeythe instructions ofany official traffic-control device, including traffic lights (Vehicle & Traffic Law § 1110). In the case of a flashing yellowlight, vehicles "may proceed through the intersection orpast such signal only with caution" (Vehicle & Traffic Law§ 1113[b]). Finally, "[a] driver is negligent ifhe or she has failed to see that which, through the properuse ofsenses, should have been seen" (Gabler vMarly Bldg. Supply Corp., 27 AD3d 519, 520 [1st Dept 2006]). Had Baptiste proceeded with caution as required under the law, he would have seen Plaintiffproceeding through the intersection, giving himthe opportunity to yield the right ofway. By striking Plaintiffin the Intersection whenmaking 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 ofway and failed to obey

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the instruction ofthe flashing yellow light to proceed with caution, in violation ofVIL§ 1141(a) and 1110. This constitutesnegligenceperse, which is sufficientto establishPlaintiff's entitlement to summaryjudgment on the issue ofBaptiste's liability (see Voravetvudhikun v Ludlow Garage, Inc., 2022 WL 13712490, at *1 [Sup Ct, NY County 2022][plaintiff's motion for summary judgmentwas grantedwhereplaintiffdemonstratedprimafacie entitlementtojudgmentas amatter oflawby 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 Plaintiffis that as he was in the intersection, defendant, who hadbeen coming in the opposite direction, made a left tum and struck him. Clearly, then, defendant failed to 'yield the right ofway 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 argumentthatPlaintiff'smotion shouldbe deniedbecausePlaintiff has not demonstratedhis own freedom from comparativenegligence, comparativenegligence goes to the issue ofdamages, notliability, and Plaintiffis notrequired to show thathe was notnegligent, 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]; seeRodriguez v City of New York, 31 NY3d 312 [2018] ["to be entitled to partial summaryjudgment a plaintiffdoes not bear the double burden ofestablishing a prima facie case ofdefendant's liability and the absence ofhis or her own comparative fault]). "Any potential issue ofcomparative negligence

...does not restrict a plaintiffs right to partial summaryjudgment" (Davis v Turner, 132 AD3d 603 [2015]). Plaintiff has also moved for summary judgment dismissing Defendants' affirmative defenses of culpable conduct, assumption ofrisk, government immunity, and invocation of the emergency doctrine. At this early stage where the City has not had an opportunity to conduct discovery, summaryjudgment on the affirmative defenses is not warranted. Moreover, Plaintiff's cursory arguments are insufficient to establishment entitlement to summaryjudgment as a matter oflaw. Accordingly, itis 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 ofthe Courtis directed to set this matter down for apreliminary conference in the DCM Part on the next available date; and it is further ORDERED that Plaintiffshall, within 20 days from entry ofthis order, serve a copy ofthis order with notice ofentry upon counsel for all parties hereto and upon the Clerk ofthe General Clerk's Office and shall serve and file with said Clerk a note ofissue and statement ofreadiness

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and shall paythe fee therefor, and said Clerk shall cause the matter to be placedupon the calendar for such trial before the undersigned; and it is further ORDERED that such service uponthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Proceduresfor ElectronicallyFiled Cases (accessible at the "E-Filing"page onthe court's website)]. This constitutes the decision and order ofthe 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

5 of 5 HASAA. KIN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT**□** OTHER**□** REFERENCE

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