14 BY FERDINAND v. SPROUSE GUZMAN (2025)

Upon the following papers read on plaintiffs’ motion for summary judgment on the issue of liability pursuant to CPLR 3212: NYSCEF documents 1 thru 38; it is hereby

ORDERED plaintiffs’ motion is granted in all respects; and it is

ORDERED the parties are directed to appear in Part 70, 210 Center Drive, Riverhead, New York 11901 on March 19, 2025, at 9:30 a.m. for a conference.

Plaintiff, a then 11-year-old child, and his mother commenced this action on October 24, 2023, to recover damages for personal injuries allegedly as a result of being struck by a school bus while in a crosswalk on September 18, 2023. Defendants answered on January 16, 2024. Discovery is complete and a note of issue was filed on January 15, 2025. Plaintiffs now move for summary judgment on the issue of liability. In support of the motion, plaintiffs submit, among other things, the pleadings, an affirmation of counsel, the deposition transcript of defendant bus driver Frank Sprouse-Guzman, the deposition transcript of the child, photographs of the accident scene, and an uncertified police report. In opposition, defendants submit an affirmation of counsel, and an affidavit of Fawn Candela, who authenticates a CD of the recorded video of the accident, which was filed by mail. In reply, plaintiffs submit an affirmation of counsel.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Chimbo v Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]).

A plaintiff “is no longer required to show freedom from comparative fault in establishing his or her prima facie case” (Ashby v Estate of Encarnacion, 178 AD3d 763, 765, 111 NYS3d 894 [2d Dept 2019]; see Rodriguez v City of New York, 31 NY3d 312, 76 NYS3d 898 [2018]). The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Brodney v Picnic, 172 AD3d 673,99 NYS3d 399 [2d Dept 2019]).

In relevant part, New York State Vehicle and Traffic Law § 1146 provides that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon a roadway and shall give warning by sounding the horn when necessary. Pursuant to New York State Vehicle and Traffic Law § 1151 the driver of a motor vehicle has an obligation to yield to the pedestrian crossing the roadway with a crosswalk on a roadway which the vehicle is traveling. Although the pedestrian has the right of way, Vehicle and Traffic Law § 1151 also imposes the duty on the pedestrian ‘not to leave the curb or other place of safety and enter the path of the vehicle when the vehicle is so close that it is impractical for the drive to yield (Rosenblatt v Parnes, 207 AD3d 675, 676, 170 NYS3d 491 [2d Dept 2022]; see Vehicle and Traffic Law § 1151[b]). In addition to these statutorily imposed duties, a driver of a motor vehicle has 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 AD3d 1072, 1073, 163 NYS3d 586, 588 [2d Dept 2022]).

Here, plaintiffs’ have established their prima facie entitlement to summary judgment on the issue of liability as the child testified that on September 18, 2023, he was crossing the street and was within the crosswalk of Rider Avenue when he was struck by defendants’ bus. Plaintiff further testified that prior to entering the roadway he came to a complete stop at the corner of the intersection and looked to his left to observe oncoming traffic. Plaintiff testified that at the time of the incident, it was raining hard, he did not have an umbrella or raincoat but the hood on his sweatshirt was up. He further testified that he was not listening to music in any way, his cell phone was stowed in his pant pocket, and he was not eating anything. Prior to the point of impact, no horn sounded, and the tires did not screech. Plaintiff testified that he was about two to three steps into the roadway in the crosswalk at the time of impact.

Defendant bus driver Frank Sprouse-Guzman was 78 years old at the time of the incident, he had been driving a bus for a little over a year, and prior to driving a bus, he worked as a mechanic and drove for Uber using his personal vehicle. At the time of the incident, defendant driver had been driving that particular bus route from the time the school year began in early September to September 18, 2023. Defendant driver further testified that he does not remember the date of the incident, the intersection it occurred, or what school was the vicinity. Defendant driver testified that the accident occurred in the afternoon while he was bringing children home from school and the police report indicating an incident time of 7:58 a.m. did not refresh his recollection as to the time of the incident. Defendant driver testified that he did not see the child at any point before striking him. He testified that at the time of impact he was accelerating, not slowing down. He testified that the first time he saw the child was after the impact and his first indication of the collision was the sound.

In opposition, defendants submit a camera recording of the accident. A review of the video shows that defendant driver approached the intersection and came to a complete stop for roughly one second. The time stamp on the video shows (incorrectly) that the bus approached the intersection at 11:56:59, the bus came to a complete stop at the 11:57:01 time stamp, and then proceeded into the intersection at the 11:57:02 time stamp. The video shows the time of impact with the child at 11:57:06. Contrary to defendants’ position that the child did not look to the left before the accident, in the video the child's head is not clear, while his torso and legs can be clearly made out, his head, at the top of the screen is blurred, and thus defendants’ position that plaintiff did not look to the left is speculative. While it does appear that the bus starts to accelerate into the intersection a half of a second prior to the infant plaintiff stepping into the crosswalk, at the time of accident the infant plaintiff was in the middle of the road in the crosswalk. Thus, when the infant left the sidewalk the defendant's vehicle was not so close that he was unable to yield had he seen that which he should have seen through the proper use of his senses (see Rosenblatt v Parnes, supra; Lieb v Jaconson, supra). The infant plaintiff does not appear to be running or moving at a rate of speed inconsistent with that of a walk. Defendant contends that triable issues of fact remain as to plaintiff's share of fault. However, plaintiff was not required to address comparative negligence, as a “plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault” (Rodriguez v City of New York, NY3d 312, 324-325, 76 NYS3d 898 [2018]; see Callahan v Glennon, supra; Sapienza v Harrison, 191 AD3d 1028, 142 NYS3d 584 [2d Dept 2021]).

Accordingly, plaintiff's motion is granted.

Paul M. Hensley, J.