CUI v. HUSSAIN (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered February 3, 2021.  The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense, alleging comparative negligence.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense, alleging comparative negligence, is granted.

The plaintiff pedestrian allegedly sustained injuries when she was struck by the defendant's vehicle as she attempted to cross 34th Avenue at its intersection with Union Street in Queens.  The plaintiff commenced this action to recover damages for personal injuries and thereafter moved for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense, alleging comparative negligence.  In an order entered February 3, 2021, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

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 (see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366;  Maliakel v. Morio, 185 A.D.3d 1018, 1019, 129 N.Y.S.3d 99).  Nonetheless, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing an affirmative defense alleging comparative negligence (see Kwok King Ng v. West, 195 A.D.3d 1006, 1007, 146 N.Y.S.3d 811;  Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1014, 126 N.Y.S.3d 369).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability.  The plaintiff submitted evidence demonstrating that she was approximately halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was making a right turn, failed to yield the right-of-way and struck her, and that the defendant did not see the plaintiff in the crosswalk while making his turn (see Maliakel v. Morio, 185 A.D.3d at 1019, 129 N.Y.S.3d 99;  Hai Ying Xiao v. Martinez, 185 A.D.3d at 1015, 126 N.Y.S.3d 369;  Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92;  Huang v. Franco, 149 A.D.3d 703, 703, 51 N.Y.S.3d 188).  The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk (see Dunajski v. Kirillov, 148 A.D.3d 991, 992, 49 N.Y.S.3d 751;  Gomez v. Novak, 140 A.D.3d 831, 831–832, 32 N.Y.S.3d 623;  Martinez v. Kreychmar, 84 A.D.3d 1037, 1038, 923 N.Y.S.2d 648).  In opposition, the defendant failed to raise a triable issue of fact as to his negligence or whether the plaintiff was comparatively at fault in the happening of the accident (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Furthermore, the plaintiff's motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see Maliakel v. Morio, 185 A.D.3d at 1019, 129 N.Y.S.3d 99;  Rodriguez–Garcia v. Bobby's Bus Co., Inc., 175 A.D.3d 631, 632, 104 N.Y.S.3d 904;  Lazarre v. Gragston, 164 A.D.3d 574, 575, 81 N.Y.S.3d 541).  The “mere hope or speculation” that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff's motion (Lazarre v. Gragston, 164 A.D.3d at 575, 81 N.Y.S.3d 541;  see Niyazov v. Hunter EMS, Inc., 154 A.D.3d 954, 955, 63 N.Y.S.3d 457).

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

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