WALCOTT v. WHEELS INC (2025)

Order, Supreme Court, New York County (James G. Clynes, J.), entered December 8, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability as against defendants Rafael Mercado and Carl Zeiss, Inc., and to strike defendants’ affirmative defense of culpable conduct, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to partial summary judgment against defendants Mercado and Zeiss through his testimony that, while he was driving his moped wholly within the right lane of traffic, he was struck by a minivan, leased by Zeiss and driven by Mercado, as it attempted to merge into his lane of traffic from the left (see Silverio v. Ford Motor Co., 168 A.D.3d 608, 609, 90 N.Y.S.3d 894 [1st Dept. 2019]).  Mercado also testified that the accident occurred when he began to merge into the right lane and that he never saw plaintiff's vehicle prior to the collision.  Thus, Mercado, “in effect, admit[ed] that [he] was negligent in violating Vehicle and Traffic Law § 1128(a) by changing lanes when it was not safe to do so, and by failing to see that which was there to be seen” (Guerrero v. Milla, 135 A.D.3d 635, 636, 24 N.Y.S.3d 63 [1st Dept. 2016];  see Mitchell v. Smith, 142 A.D.3d 861, 862, 37 N.Y.S.3d 541 [1st Dept. 2016]).

In opposition, defendants failed to provide a nonnegligent explanation for the accident.  Their speculative assertion that the accident could have been caused by plaintiff trying to squeeze between the bus in front of him as it was turning out of his lane and Mercado's minivan as it was merging into his lane, was not supported by the record and insufficient to rebut the presumption of Mercado's negligence (see Estate of Bachman v. Hong, 169 A.D.3d 436, 437, 92 N.Y.S.3d 281 [1st Dept. 2019]).  Plaintiff, as the driver with the right-of-way, was entitled to anticipate that Mercado would obey the traffic laws that required him to yield (see Flores v. City of New York, 66 A.D.3d 599, 600, 888 N.Y.S.2d 27 [1st Dept. 2009]), and there is no evidence that plaintiff “had time to react to [Mercado]’s vehicle coming into his lane” (Mitchell, 142 A.D.3d at 862, 37 N.Y.S.3d 541).

Because the record bears “no indication that plaintiff ․ contributed in any way to the accident” (Flores, 66 A.D.3d at 599, 888 N.Y.S.2d 27), the affirmative defense based on his culpable conduct was properly dismissed (see e.g. Stephenson v. New York City Tr. Auth., 226 A.D.3d 546, 547, 207 N.Y.S.3d 516 [1st Dept. 2024];  Ferreira v. E–J Elec. Installation Co., 220 A.D.3d 617, 617, 197 N.Y.S.3d 216 [1st Dept. 2023]).