BAXTER v. GOSH (2025)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered April 21, 2025, which denied plaintiff's motion for summary judgment on the issue of liability and to dismiss defendant's affirmative defense of comparative fault and culpable conduct, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff demonstrated prima facie entitlement to summary judgment by demonstrating that defendant “was negligent in violating Vehicle and Traffic Law § 1128(a) by changing lanes when it was not safe to do so” (Guerrero v. Milla, 135 A.D.3d 635, 636, 24 N.Y.S.3d 63 [1st Dept. 2016]), and that defendant's “failure to obey the traffic laws that required [him] to yield the right of way” to plaintiff was the sole proximate cause of the collision (Chavis v. Zorrilla, 222 A.D.3d 581, 582, 202 N.Y.S.3d 96 [1st Dept. 2023];  see also Silverio v. Ford Motor Co., 168 A.D.3d 608, 609, 90 N.Y.S.3d 894 [1st Dept. 2019]).  Plaintiff's unrefuted affidavit stated that plaintiff was driving in the left lane of traffic when defendant, who was driving in the right lane of traffic, attempted to merge into plaintiff's lane without signaling, striking plaintiff (see Walcott v. Wheels Inc., 235 A.D.3d 567, 568, 228 N.Y.S.3d 69 [1st Dept. 2025];  Guerrero, 135 A.D.3d at 636, 24 N.Y.S.3d 63).  Plaintiff's affidavit also established that defendant turned into plaintiff's lane so suddenly that plaintiff was unable to take any action to avoid the collision (see Walcott, 235 A.D.3d at 568, 228 N.Y.S.3d 69;  Mitchell v. Smith, 142 A.D.3d 861, 862, 37 N.Y.S.3d 541 [1st Dept. 2016]).  Plaintiff was not required to establish the absence of comparative negligence on his part to be entitled to summary judgment on liability (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018];  Vasquez v. Strickland, 211 A.D.3d 414, 414, 177 N.Y.S.3d 482 [1st Dept. 2022]).

In opposition, defendant failed to provide a nonnegligent explanation for the collision.  Defendant did not “submit any affidavit or other evidence concerning how the accident occurred that would raise an issue of fact” (Estate of Bachman v. Hong, 169 A.D.3d 436, 437, 92 N.Y.S.3d 281 [1st Dept. 2019]), and “[t]he affirmation by [his] counsel, who had no personal knowledge of the accident, was insufficient” to rebut the presumption of defendant's negligence (Chavis, 222 A.D.3d at 582, 202 N.Y.S.3d 96;  see also Thompson v. Pizzaro, 155 A.D.3d 423, 423, 62 N.Y.S.3d 807 [1st Dept. 2017]).

Plaintiff's motion was not premature because information as to why defendant's vehicle struck plaintiff's vehicle was within defendant's own knowledge (see Stephenson v. New York City Tr. Auth., 226 A.D.3d 546, 546–547, 207 N.Y.S.3d 516 [1st Dept. 2024];  see also Reyes v. Gropper, 212 A.D.3d 565, 565, 183 N.Y.S.3d 369 [1st Dept. 2023]).  Defendant's argument that the motion was premature due to the lack of depositions, without more, is unavailing (see Rivera v. City of New York, 210 A.D.3d 544, 545, 179 N.Y.S.3d 27 [1st Dept. 2022]).

Because plaintiff established his own absence of negligence, and defendant failed to submit any evidence sufficient to raise an issue of fact as to plaintiff's culpable conduct, the affirmative defense of comparative fault and contributory negligence should have been dismissed (see Stephenson, 226 A.D.3d at 547, 207 N.Y.S.3d 516;  see also Walcott, 235 A.D.3d at 568, 228 N.Y.S.3d 69).