HOCKADAY v. HESSEL (2024)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered March 9, 2023, which granted plaintiff's motion for partial summary judgment on the issue of liability and striking defendants’ affirmative defenses, unanimously modified, on the law, to deny so much of plaintiff's motion as sought dismissal of defendants’ affirmative defenses of culpable conduct or comparative fault, and otherwise affirmed, without costs.

Plaintiff made a prima facie showing of her entitlement to judgment as a matter of law on the issue of defendants’ liability through her affidavit demonstrating that she was crossing the street in a wheelchair or motorized scooter, within the crosswalk, with the light in her favor, when she was struck by defendants’ tractor trailer, which was making a left turn across the crosswalk while coming out of a parking lot (see Torres v. Werner Bus Lines, Inc., 157 A.D.3d 624, 67 N.Y.S.3d 635 [1st Dept. 2018];  Hines v. New York City Tr. Auth., 112 A.D.3d 528, 529, 977 N.Y.S.2d 238 [1st Dept. 2013]).  However, plaintiff also submitted photographs showing her lying partly within the crosswalk after the accident and a certified police accident report which included witness statements that she was not within the crosswalk.  A finding that plaintiff was outside the crosswalk is relevant to plaintiff's comparative fault, but does not affect the finding that defendant driver was negligent since he violated Vehicle and Traffic Law § 1146, which imposes a superseding duty on drivers to “exercise due care to avoid colliding with any ․ pedestrian ․ upon any roadway” (Deitz v. Huibregtse, 25 A.D.3d 645, 646, 808 N.Y.S.2d 737 [2d Dept. 2006]).

In opposition, defendant submitted an affidavit in which he admitted that he did not see plaintiff before the tractor trailer hit her and offered only speculation that he may not have been able to see her because her wheelchair was low.  Thus, whether plaintiff was within the crosswalk or near it, the truck driver was at fault for failing to see what was there to be seen as he exited the parking lot into the two-lane road and started turning left into the pedestrian crosswalk (see Wargold v. Hudson Tr. Lines, Inc., 219 A.D.3d 546, 548, 194 N.Y.S.3d 78 [2d Dept. 2023];  Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]).

The conflicting evidence as to whether plaintiff was within or next to the crosswalk and issues as to whether she could have observed the tractor trailer pulling out next to her and avoided it, precludes dismissal of the defense based on comparative fault.  However, the defense founded upon the emergency doctrine was properly dismissed given the absence of evidence to indicate defendant truck driver perceived or reacted to an emergency (Pai v. Reliant Transp., Inc., 203 A.D.3d 585, 162 N.Y.S.3d 713 [1st Dept. 2022]). Defendants offer no argument to support the other affirmative defenses, which were properly dismissed.