ROMAIN v. CITY OF NEW YORK (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated December 8, 2017.  The order, insofar as appealed from, denied the plaintiffs' motion, in effect, for summary judgment against the defendants on the issue of whether the plaintiff Venante Romain was at fault in the happening of the accident.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the plaintiffs' motion, in effect, for summary judgment against the defendants on the issue of whether the plaintiff Venante Romain was at fault in the happening of the accident is granted.

The plaintiff Venante Romain (hereinafter the injured plaintiff) allegedly was injured in an automobile accident that occurred on December 30, 2015, in Brooklyn.  At the time of the accident, the injured plaintiff was a backseat passenger in a vehicle operated by the defendant Steven D. Freed and owned by the defendant HVS Management, Inc. (hereinafter the Freed vehicle).  The Freed vehicle was struck in the rear by a dump truck, which was operated by the defendant Hans Joseph and owned by the defendant New York City Department of Transportation.

The injured plaintiff, and her husband suing derivatively, commenced this action.  Subsequently, the plaintiffs moved, in effect, for summary judgment against the defendants on the issue of whether the injured plaintiff was at fault in the happening of the accident.  The Supreme Court denied the motion, and the plaintiffs appeal.

The Supreme Court should not have denied the plaintiffs' motion, in effect, for summary judgment against the defendants on the issue of whether the injured plaintiff was at fault in the happening of the accident.  The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g];  Jung v. Glover, 169 A.D.3d 782, 783, 93 N.Y.S.3d 390;  Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 24–25, 22 N.Y.S.3d 75;  Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700;  Medina v. Rodriguez, 92 A.D.3d 850, 850, 939 N.Y.S.2d 514;  Garcia v. Tri–County Ambulette Serv., 282 A.D.2d 206, 207, 723 N.Y.S.2d 163;  Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 833–834, 486 N.Y.S.2d 357).  Here, the plaintiffs made a prima facie showing of entitlement to summary judgment on their motion, and in opposition, the defendants failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  It is uncontested that the injured plaintiff was a passenger seated in the rear passenger seat of the Freed vehicle.  While both drivers involved in the accident submitted affidavits in which each maintained that they were free from fault, neither driver suggested that the injured plaintiff bore any fault in the happening of the accident (see Phillip v. D & D Carting Co., Inc., 136 A.D.3d at 25, 22 N.Y.S.3d 75).

Contrary to the defendants' contentions, the plaintiffs' motion was not premature.  The defendants failed to establish that additional discovery might lead to relevant evidence, or that facts essential to oppose the motion were in the exclusive knowledge and control of the plaintiffs (see CPLR 3212[f];  Kerolle v. Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387).

Moreover, to the extent that the defendants assert a seatbelt defense, an alleged failure by the injured plaintiff to wear a seatbelt is not relevant to the issue of liability but, rather, may “be introduced into evidence in mitigation of damages” (Vehicle and Traffic Law § 1229–c[8];  see Spier v. Barker, 35 N.Y.2d 444, 449–450, 363 N.Y.S.2d 916, 323 N.E.2d 164;  Brabham v. City of New York, 105 A.D.3d 881, 883, 963 N.Y.S.2d 332).

RIVERA, J.P., AUSTIN, COHEN and IANNACCI, JJ., concur.