Terry Reed, Plaintiff, against Andrew Male, Defendant.
THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
street, summary judgment, matter of law, traffic, bicycle, comparative negligence, issue of fact, intersection, pedestrians, signal
Judges: Hon. Carol R. Edmead, J.S.C.
Opinion by: Carol R. Edmead
In this personal injury action arising out of a bicycle accident, plaintiff Terry Reed ("plaintiff") moves pursuant to CPLR 3212 for summary judgment against defendant Andrew Male("defendant"), on the ground that defendant was negligent as a matter of law based on the fact that he traveled in a wrong direction in a bicycle lane. Defendant opposes the motion.
On December 13, 2012 at approximately 8 p.m., plaintiff was injured when she was attempting to cross Sixth Avenue at the cross-walk/intersection of 15th Street in Manhattan. A portion of Sixth Avenue adjacent to the sidewalk was delineated as a bike lane. At her deposition, plaintiff testified that she waited at the intersection for the light to turn to "walk" for pedestrians, and when the light changed, she proceeded to cross Sixth Avenue. At that time, she was struck by a bicycle operated by defendant, who was traveling in the southbound direction on Sixth Avenue which is a one-way  street with the northbound direction of the traffic (plaintiff transcript, pp. 16-17).
In her complaint, plaintiff alleges negligence against defendant and now moves for summary judgment on the ground that defendant's conduct in violation of New York's Vehicle and Traffic Law ("VTL") §§ 1127 (a) and § 1231 renders him negligent per se.
Plaintiff argues that defendant, as a bicycle rider, was required by VTL §§ 1231 and § 1127(a)to adhere to all the rules applicable to automobile drivers, and, like the operators of motor vehicles, to ride in the direction of traffic on a one-way street. Defendant acknowledged at his deposition that he was not permitted to travel southbound in a bike lane running parallel to a street with northbound traffic (defendant transcript, p. 97).
Further, defendant's negligence was the sole proximate cause of the incident, since plaintiff looked in both directions prior to crossing Sixth Avenue and did not see defendant approaching (plaintiff's Affidavit, Exhibit H).
Defendant opposes the motion, arguing that it cannot be held liable per se because plaintiff was comparatively negligent. Plaintiff was crossing a busy Manhattan intersection when the signal for pedestrians  was "solid orange" (defendant transcript, pp. 84-86; see alsodefendant's Affidavit) and did not look in both directions of traffic prior to crossing the street, in violation of VTL §§ 1112 [c] and
1150, which require pedestrians to observe traffic-control signals in the same manner as motorists. Defendant contends that the traffic light for northbound traffic was "green" (defendant transcript, pp. 84-86), and the "solid orange hand signal indicat[ed] a stop signal" (see Affidavit, P4; defendant transcript, p. 85). And even if plaintiff had a "walk" sign which permitted her to cross, she was nevertheless required to keep a proper lookout to meet the standard of care for her own safety. Defendant testified at deposition that, when he saw plaintiff immediately prior to the impact, plaintiff did not look in the north or south-bound directions, but rather, was looking in the eastbound direction (see defendant transcript, pp. 64-65).
In reply, plaintiff argues that she looked both ways and had no legal duty to look again. Furthermore, she did not see defendant because he was traveling the wrong way and plaintiff's view was obscured by cars parked along the curb (plaintiff transcript, p.  18).
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" (Santiago v Filstein, 35 AD3d 184, 185-186, 826 N.Y.S.2d 216 [1st Dept 2006], quotingWinegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 ). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228, 812 N.Y.S.2d 12 [1st Dept 2006];
Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 ).
Plaintiff's motion is denied.
To establish a prima facie case of negligence, a plaintiff must show duty, breach and proximate cause (Kenney v City of New York, 30 AD3d 261, 262, 817 NYS2d 264 [1st Dept 2006]). Furthermore, pursuant to the recent pronouncements of the First Department, to be entitled to summary judgment, plaintiff must also show that her negligence did not contributeto the incident(Maniscalco v New York City Transit Auth., 95 AD3d 510, 943 N.Y.S.2d 486 [1st Dept 2012], citing
Thoma v Ronai, 82 NY2d 736, 621 N.E.2d 690, 602 N.Y.S.2d 323 ).
Pursuant to VTL § 1231, "[e]very person riding a bicycle [  . . .] upon a roadway [ . . . ]shall be subject to all of the duties applicable to the driver of a vehicle by this title," and, pursuant to
VTL § 1127(a), "[u]pon a roadway designated and signposted for one-way traffic, a vehicle shall be driven only in the direction designated."
Plaintiff demonstrates, through testimonial evidence, that defendant was negligent in operating his bicycle as he was riding in the wrong direction on the one-way street in violation of VTL §§ 1127(a) and
§ 1231, and that she was crossing the street, within the crosswalk, with the light in her favor when she was struck (see
Gonzalez v ARC Interior Constr., 83 AD3d 418, 419, 921 N.Y.S.2d 33 [1st Dept 2011]). It is well established that a "violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se" (Garcia v Verizon New York, Inc., 10 AD3d 339, 340, 781 N.Y.S.2d 93 [1st Dept 2004];
Barbieri v Vokoun, 72 AD3d 853, 856, 900 N.Y.S.2d 315 [2d Dept 2010]; see
Ciatto v Lieberman, 266 AD2d 494, 698 NYS2d 54 [2d Dept 1999][failure to yield right of way to vehicle approaching from opposite direction when making a left turn, in violation of
VTL § 1141, constitutes negligence per se]). Thus, defendant's negligence is established  as a matter of law.
Nevertheless, the court must deny plaintiff's motion, since defendant's opposition raises a triable issue of fact with respect to plaintiff's comparative negligence. In a recent decision, the First Department held that "[even] where the record establishes the defendant's negligence, the plaintiff is not entitled to summary judgment as to liability where a question of [plaintiff's] comparative fault must be resolved at trial" (Maniscalco v New York City Transit Auth., supraciting
Thoma v Ronai, 82 NY2d 736, 621 N.E.2d 690, 602 N.Y.S.2d 323 ).
It is well established that plaintiff must take care in ensuring the absence of oncoming traffic when crossing the street (Thoma v Ronai, 189 AD2d 635, 592 NYS2d 333 [1st Dept 1993], aff'd82 NY2d 736, 621 N.E.2d 690, 602 NYS2d 323 [a failure to yield the right of way does not ipso facto settle the question of whether the other party was herself guilty of negligence],citing
Schmidt v Flickinger Co., 88 AD2d 1068, 452 NYS2d 767 [3d Dept 1982]). Plaintiff's assertion in her affidavit that she looked "both ways down [the Sixth] Avenue" prior to crossing the street (plaintiff's Affidavit, exhibit H), is controverted by defendant's testimony that at the time of the incident,  plaintiff started crossing when the signal for pedestrians was "solid orange" (defendant transcript, p. 86). These conflicting accounts raise triable issues of fact as to whether plaintiff had the pedestrian "walk" light when she was crossing the street.
Furthermore, defendant's testimony that plaintiff did not look in the northbound or southbound directions,1 and plaintiff's testimony, that she did not see defendant immediately prior to the incident (plaintiff transcript, p. 18), raise a triable issue as to whether plaintiff was negligent in failing to look in both directions while crossing the intersection (Thoma v Ronai, 189 AD2d 635, 592 NYS2d 333 [1st Dept 1993], aff'd
82 NY2d 736, 621 N.E.2d 690, 602 NYS2d 323[plaintiff's concession that she did not observe the van that struck her sufficient to raise a factual question of her reasonable care while crossing the intersection precluding summary judgment in plaintiff's favor];
Calcano v Rodriguez, 91 AD3d 468, 936 NYS2d 185 [1st Dept 2012][plaintiff's testimony at his deposition that he did not see the defendant's car prior to the accident raised a question of fact as to whether the plaintiff was negligent in failing to observe what should  have been observed];
Wein v Robinson, 92 AD3d 578, 939 NYS2d 364 [1st Dept 2012]).
"[Plaintiff's] comparative negligence may be found by a [trier of fact] to be minimal, or even zero, but the record does not support [this court's] finding a total absence of comparative negligence as a matter of law" (Thoma v Ronai, 189 AD2d 635, 592 N.Y.S.2d 333, citingSchmidt v Flickinger Co., supra). As stated by the Court in Thoma,
"A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. The law does not say how often he must look, or precisely how far, or when or from where. If, for example, he looks as he starts to  cross, and the way seems clear, he is not bound as a matter of law to look again.... If he has used his eyes, and has miscalculated the danger, he may still be free from fault. But it is a very different thing to say that he is not bound to look at all. We have repeatedly held that one who crosses a city street without any exercise of his faculty of sight, is negligent as a matter of law. To escape the consequences of such negligence, he must prove that even if he had looked, the accident would still have happened"
(Thoma, citing Pecora v Marique, 273 AD 705, 79 NYS2d 350 [1st Dept 1948]) [internal citations omitted].
Plaintiff's argument that the court's finding of defendant's negligence per se automatically warrants summary judgment in plaintiff's favor, is unsupported by the current law, however unsettled. As stated above, the Court of Appeals held in Thoma that, even where a record establishes the defendant's negligence as a matter of law, summary judgment on the issue of liability is unwarranted where there is a material issue of fact as to whether the plaintiff was negligent (Thoma v Ronai, 82 NY2d 736, 621 N.E.2d 690, 602 NYS2d 323, supra). Nevertheless, in
Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 895 NYS2d 389 [1st Dept 2010],  followed by
Gonzalez v ARC Interior Construction (83 AD3d 418, 921 NYS2d 33 [1st Dept 2011]), the First Department held that, pursuant to
CPLR 1411 and notwithstanding decisions of the Second Department, comparative negligence "merely acts to diminish the plaintiff's recovery in proportion to the culpable conduct of the defendants," and thus, a plaintiff need not demonstrate freedom from comparative negligence in order to be entitled to summary judgment on the issue of liability. Rather, she need only show that "the defendant's negligence was a substantial cause of the events which produced the injury" (Tselebis, 72 AD3d at 200,citing
Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 NYS2d 166 ;
Gonzalez v ARC Interior Constr., 83 AD3d at 419).
And yet, most recently, the First Department declined to follow Tselebis (see Calcano v Rodriguez, 91 AD3d 468, 936 N.Y.S.2d 185, supra;
Maniscalco v New York City Transit Auth., 95 AD3d 510, 943 N.Y.S.2d 486, supra).2 The Court, following Thoma, explained in Maniscalcothat where there is evidence in the pretrial record that more than one party's negligence may have caused the injury, it is not appropriate for a court to rule as a matter of law that [only] one of those  parties caused the injury (Maniscalco, at 512-513).
Likewise here, in light of the evidence that plaintiff was looking eastbound and did not see defendant until the moment of impact, the court cannot determine as a matter of law that defendant's negligence in operating his bicycle the wrong way on a one-way street was the substantial cause of the incident and that plaintiff was not comparatively negligent. Therefore, the court declines to grant summary judgment to plaintiff.
Based on the foregoing, it is hereby
ORDERED that plaintiff Terry Reed's motion pursuant to CPLR 3212 for summary judgment against defendant Andrew Male is denied; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry upon defendant's counsel within 20 days of this order.
This constitutes the decision and order  of the court.
Dated: November 14, 2012
Hon. Carol R. Edmead, J.S.C.