TORRES v. WERNER BUS LINES INC (2018)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered August 4, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his entitlement to partial summary judgment through his testimony that he was crossing the intersection within the crosswalk and with the light in his favor, when defendants' bus struck him while making a left turn (see Hines v. New York City Tr. Auth., 112 A.D.3d 528, 529, 977 N.Y.S.2d 238 [1st Dept. 2013] ).  The testimony of defendant bus driver does not contradict plaintiff's testimony that he was in the crosswalk, since the driver did not see plaintiff until the moment of impact.  The driver's observation of a white crossing signal before commencing his turn also does not contradict plaintiff's testimony that he started crossing with the light in his favor.

In opposition, defendants failed to raise a triable issue of fact as to plaintiff's comparative negligence.  Defendants proffered no evidence that plaintiff was outside of the crosswalk.  Their driver was “not sure” if the impact took place within the crosswalk, and the position of plaintiff's body after impact is “not probative as to whether she was walking in the cross[ ]walk prior to being struck” (see id.).

The court should not have considered the videotape footage defendants provided as defendants neither authenticated it nor even showed that it had any relevance to the accident at issue (see People v. Price, 29 N.Y.3d 472, 80 N.E.3d 1005 [2017] ).  It indicates, at most, that it was raining.  Even if it showed, as defendants claim, that the pedestrian cross signal changed as plaintiff was crossing, that would not help defendants, as plaintiff was permitted to proceed across the avenue, once he started crossing with the signal in his favor (see Vehicle and Traffic Law § 1112[b], [c];  DiDonna v. Houck, 111 A.D.3d 662, 663, 974 N.Y.S.2d 550 [2nd Dept. 2013] ). The remainder of the videotape does not capture the accident so as to raise an issue of fact.