FAROOQ v. Bobirjon Zokirov, respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Robin S. Garson, J.), dated March 23, 2023.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendant Bobirjon Zokirov and dismissing that defendant's affirmative defense alleging comparative negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendant Bobirjon Zokirov and dismissing that defendant's affirmative defense alleging comparative negligence are granted.

In January 2021, the plaintiff commenced this action to recover damages for personal injuries that he alleged he sustained approximately two months earlier when a motor vehicle collided with him while he was walking across Avenue U in Brooklyn.  According to the plaintiff, the defendant Bobirjon Zokirov (hereinafter the defendant), the owner and operator of the vehicle, was making a left turn from East 16th Street onto Avenue U at the time of the accident.  In January 2023, the plaintiff moved, among other things, for summary judgment on the issue of liability against the defendant and dismissing the defendant's affirmative defense alleging comparative negligence.  By order dated March 23, 2023, the Supreme Court, inter alia, denied those branches of the motion.  The plaintiff appeals.

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries” (Shanyou Liu v. Joerg, 223 A.D.3d 762, 763, 203 N.Y.S.3d 388 [internal quotation marks omitted]).  “To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” (Xiuying Cui v. Hussain, 207 A.D.3d 788, 789, 173 N.Y.S.3d 44;  see Rodriguez v. City of New York, 31 N.Y.3d 312, 317–325, 76 N.Y.S.3d 898, 101 N.E.3d 366).  “However, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence” (Dieubon v. Moore, 229 A.D.3d 686, 687, 213 N.Y.S.3d 457 [internal quotation marks omitted]).

“A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” (Ali v. Alam, 223 A.D.3d 642, 644, 203 N.Y.S.3d 159 [alterations and internal quotation marks omitted]).  As relevant here, “[a] driver who faces a green light has a duty to yield the right-of-way to pedestrians who are lawfully within a crosswalk in accordance with the standard of care imposed by Vehicle and Traffic Law § 1111(a)(1)” (Lieb v. Jacobson, 202 A.D.3d 1072, 1073, 163 N.Y.S.3d 586;  see Callahan v. Glennon, 193 A.D.3d 1029, 1030, 147 N.Y.S.3d 665).  “A driver also has a statutory duty” pursuant to Vehicle and Traffic Law § 1146 “to use due care to avoid colliding with pedestrians on the roadway, as well as a common-law duty to see that which he or she should have seen through the proper use of his or her senses” (Lieb v. Jacobson, 202 A.D.3d at 1073, 163 N.Y.S.3d 586 [citations, alterations, and internal quotation marks omitted];  see Khalil v. Garcia–Olea, 222 A.D.3d 853, 854, 201 N.Y.S.3d 501).  Relatedly, “[a] pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield” (Huang v. Franco, 149 A.D.3d 703, 703, 51 N.Y.S.3d 188).  “Nevertheless, a pedestrian who crosses in a crosswalk with the right-of-way may still be held comparatively negligent if he or she failed to notice an oncoming vehicle that could have been seen by the exercise of ordinary care” (Wray v. Galella, 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401).

Here, contrary to the defendant's contention, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability against the defendant and dismissing the defendant's affirmative defense alleging comparative negligence (see Binger Mei v. Kim Wan Cheung, 215 A.D.3d 909, 910, 187 N.Y.S.3d 311).  In support of his motion, the plaintiff submitted, among other things, the transcripts of his own deposition testimony and of the defendant's deposition testimony.  The plaintiff's deposition testimony “demonstrated that [he] was walking within a crosswalk with the pedestrian signal in [his] favor when [the defendant], who was attempting to make a left turn, failed to yield the right-of-way and struck [him]” (Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1015, 126 N.Y.S.3d 369;  see Jordon v. Chan, 214 A.D.3d 774, 775–776, 186 N.Y.S.3d 49).  The plaintiff's deposition testimony was also sufficient to establish, prima facie, that he was not at fault in the happening of the accident, since he testified that the collision occurred suddenly and that, before crossing the roadway, he observed the pedestrian signal in his favor while also looking for oncoming traffic (see Binger Mei v. Kim Wan Cheung, 215 A.D.3d at 910, 187 N.Y.S.3d 311;  Wray v. Galella, 172 A.D.3d at 1448, 101 N.Y.S.3d 401).  Further, the defendant's deposition testimony confirmed that the plaintiff had the right-of-way and that the defendant “did not see the plaintiff in the crosswalk while making his turn” (Xiuying Cui v. Hussain, 207 A.D.3d at 789, 173 N.Y.S.3d 44;  see Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 789, 111 N.Y.S.3d 92).  Contrary to the defendant's assertion, his deposition testimony that he did not see the plaintiff until the moment of impact did not create an inference under the circumstances presented that the plaintiff failed to use reasonable care while crossing the roadway (see Binger Mei v. Kim Wan Cheung, 215 A.D.3d at 910, 187 N.Y.S.3d 311;  Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d at 789–790, 111 N.Y.S.3d 92;  Stanford v. Dushey, 71 A.D.3d 988, 988, 900 N.Y.S.2d 64).

In opposition to the plaintiff's prima facie showing, the defendant failed to raise a triable issue of fact as to his negligence or as to whether the plaintiff was comparatively at fault in the happening of the accident (see Hai Ying Xiao v. Martinez, 185 A.D.3d at 1015, 126 N.Y.S.3d 369;  Wray v. Galella, 172 A.D.3d at 1448, 101 N.Y.S.3d 401).

Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendant and dismissing the defendant's affirmative defense alleging comparative negligence.

DUFFY, J.P., MILLER, CHRISTOPHER and VENTURA, JJ., concur.