LEGRAND v. USC NYCON LLC (2025)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about December 22, 2023, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

According to plaintiff's deposition testimony, he was waiting in his car stopped in traffic with his foot on the brake when a cement truck owned by defendant USC–NYCON LLC and driven by defendant Michael Cunha hit him from behind.  For his part, Cunha testified at his deposition that as plaintiff was making a right turn, he cut Cunha off, causing plaintiff's car to be dragged through the front bumper of the cement truck.  Cunha also testified that he did not see plaintiff's car before the impact.

Defendants failed to establish their entitlement to summary judgment, as the conflicting deposition testimony raised triable issues of fact as to the proximate cause or causes of the collision (see Rawls v. Simon, 157 A.D.3d 418, 418, 66 N.Y.S.3d 126 [1st Dept. 2018];  Gyamfi v. Citywide Mobile Response Corp., 146 A.D.3d 612, 612, 44 N.Y.S.3d 759 [1st Dept. 2017]).  Plaintiff's version of the collision was not incredible as a matter of law (see Estrella–Duarte v. Rachel Cho Inc., 211 A.D.3d 405, 406, 177 N.Y.S.3d 481 [1st Dept. 2022]).  Furthermore, given Cunha's testimony that he never saw plaintiff's vehicle before the impact, there is a triable issue of fact as to whether he breached his duty to see what should be seen and to exercise reasonable care under the circumstances to avoid the collision as he approached the intersection (see Gardiner v. City of New York, 214 A.D.3d 410, 411, 183 N.Y.S.3d 304 [1st Dept. 2023]).  Cunha's testimony that the front right side of the truck's bumper came into contact with the rear left-side panel of plaintiff's vehicle also raises a possibility that plaintiff's car entered the intersection first (see Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 298, 867 N.Y.S.2d 431 [1st Dept. 2008]).  If plaintiff's vehicle had already started to enter the intersection when Cunha approached it, Cunha had a duty to use reasonable care to avoid the collision even if he had the right-of-way.

Nor can it be said as a matter of law that plaintiff's conduct was the sole proximate cause of the accident simply because his initial approach into the intersection was regulated by a stop sign whereas there were no traffic control devices regulating Cunha's approach (see Hernandez v. Bestway Beer & Soda Distrib., Inc., 301 A.D.2d 381, 753 N.Y.S.2d 467 [1st Dept. 2003]).  Instead, the record presents triable issues of fact as to whether plaintiff stopped for the stop sign as required by Vehicle and Traffic Law § 1142(a) and which vehicle entered the intersection first (see Luciano–Mahoney v. Rossman, 191 A.D.3d 604, 604–605, 139 N.Y.S.3d 536 [1st Dept. 2021];  Rivera v. Berrios Trans Serv. Inc., 64 A.D.3d 416, 417, 882 N.Y.S.2d 114 [1st Dept. 2009]).

Furthermore, the parties’ conflicting expert affidavits raise issues of fact and credibility that cannot be resolved on summary judgment (see Bradley v. Soundview Healthcenter, 4 A.D.3d 194, 194, 772 N.Y.S.2d 56 [1st Dept. 2004]).  Defendants’ experts opined that plaintiff's vehicle was moving forward before impact, and they asserted that there was no evidence supporting plaintiff's testimony that his vehicle was stopped when it was struck by defendants’ truck.  Plaintiff's expert opined, however, that the collision was caused by defendant Cunha's failure to avoid striking the rear of plaintiff's stopped vehicle.

We have considered defendants’ remaining arguments and find them unavailing.