VELASQUEZ v. JEM LEASING LLC LLC 23 20 00 NY (2023)

Plaintiff moves (Mot. Seq. 2) for an Order pursuant to CPLR 3212, granting Plaintiff Abner Velasquez summary judgment on the issue of liability against Defendants Jem Leasing LLC and Ousmane Bah and striking the Defendants’ third affirmative defense alleging that Plaintiff's damages were caused in whole or in part by the culpable conduct of the Plaintiff. Defendants oppose the motion. Defendants move (Mot. Seq. 3) for an Order pursuant to CPLR § 3212 granting Defendants summary judgment and dismissing the complaint of the Plaintiff, in its entirety, on the grounds that there are triable issues of fact, in that the Plaintiff cannot meet the serious injury threshold requirement mandated by Insurance Law 5104(a) and 5102(d). Plaintiff opposes.

This is a negligence action to recover damages for personal injuries Plaintiff allegedly sustained in a pedestrian knockdown accident that occurred on August 23, 2020, at the intersection of East 169th Street and Morris Avenue in the County of Bronx, State of New York. Plaintiff now seeks summary judgment on the basis that he was a pedestrian crossing at the intersection of East 169th Street and Morris Avenue while riding a foot-propelled scooter, when he was struck by the vehicle owned by Defendant Jem Leasing LLC and operated by Defendant Ousmane Bah. In support of his motion, Plaintiff submits the pleadings and his deposition transcript in which he averred that he was crossing at the intersection of East 169th Street and Morris Avenue within the crosswalk, when Defendant Jem Leasing LLC's vehicle struck him. He further averred that he had the walk signal. He further asserts that prior to the accident, he looked left and right before crossing at the intersection of East 169th Street and Morris Avenue and did not see Defendants’ vehicle prior to the impact. In opposition, Defendants only submit an attorney affirmation and argues that Plaintiff failed to take evasive action and thus, is comparatively at fault precluding him from summary judgment on liability.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. (See, Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept. 1988].) To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. (See, Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979].) If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. (See, Zuckerman v City of New York, supra.) When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. (See, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].) Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. (See, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988].)

Motion Sequence #2, Summary Judgment Liability

Article 34 of the New York Vehicle and Traffic Law (VTL) is composed of sections applicable only to bicycles and in-line skating. Moreover, VTL § 1231 narrows the applicability of traffic laws to wheeled, non-motorized means of conveyance, stating “Every person riding a bicycle or skating or gliding on in-line skates upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by their nature can have no application” (see also VTL §§ 1236, 1239). The legislature later enacted Article 34-D, but its application is solely for the operation of motorized scooters.

Under the VTL a pedestrian is defined as “a person afoot or in a wheelchair” (VTL § 130). For the purpose of the VTL, a wheelchair is defined as “any manual or electrically driven mobility assistance device, scooter, tricycle or similar device used by a person with a disability as a substitute for walking” (see VTL§ 130-a; Cf. Bruning by Bruning v. Warren O. Hall Bldg. Contractor, 152 Misc 2d 780 [Sup. Ct. 1991]). The Court is therefore required to construe the statutory language to discern and give effect to the drafters’ intent. In light of the fact that non-motorized scooters and skateboards are not mentioned in VTL sections 1232, 1236, or 1239, the Court finds that Plaintiff who was at the crosswalk with the crosswalk signal in his favor on a foot-propelled scooter should be regarded as a pedestrian.

A pedestrian with a steady walk signal in his or her favor may cross the intersection and should be given the right of way by vehicular traffic (see Counihan v J. H. Werhelovsk's Sons, Inc., 5 AD2d 80, 80 [1st Dept 1957]). In this case involving an accident between a motor vehicle and a pedestrian, the Plaintiff established his prima facie entitlement to summary judgment in his favor by demonstration that the Defendant motorist was negligent in failing to yield the right of way to him while he was crossing the street, within the crosswalk, with the pedestrian walk signal in his favor (see 34 RCNY § 4-03[a][1][i]; Cavitch v Mateo, 58 AD3d 592 [2009]; Zabusky v. Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v. APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The Defendants did not deny ownership of the vehicle or deny that the Plaintiff was within the crosswalk and had the walk signal in her favor at the time of the accident. The Defendants’ affirmation in opposition was insufficient to defeat the motion for summary judgment (see Capraro v. Staten Is. Univ. Hosp., 245 AD2d 256, 664 N.Y.S.2d 826; Miller v. City of New York, 214 AD2d 657, 625 N.Y.S.2d 271; Garvin v. Rosenberg, 204 AD2d 388, 614 N.Y.S.2d 190). Here, Plaintiff has sufficiently established his prima facie entitlement to summary judgment as a matter of law, by demonstrating that Defendants were negligent in failing to yield the right of way to him while he was crossing a street within the crosswalk and further, that the Plaintiff himself was free from comparative fault. (See, Buchinger v Jazz Leasing Corp., 95 AD3d 1053 [2d Dept. 2012]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009] [holding pedestrian established his prima facie entitlement to summary judgment on the issue of liability by submitting evidence that the driver failed to yield the right of way to him as he proceeded across a roadway in a crosswalk]). Plaintiff's affidavit was sufficient to establish, prima facie, that he was not at fault in the happening of the accident and it demonstrated that at the time of the accident, he was within the crosswalk with the walk signal in his favor and had the right of way when he was struck by Defendants’ vehicle.

In opposition, Defendants have failed to raise a triable issue of fact. The attorney affirmation submitted in opposition to the motion is of no evidentiary value (Conti v City of Niagara Falls Water Bd., 82 AD3d 1633, 1634 [1st Dept 2011]), and therefore Defendants have failed to rebut the presumption of negligence (see Dattilo v Best Transp. Inc., 79 AD3d 432 [1st Dept 2010]). In addition, Vehicle and Traffic Law § 388, states, in pertinent part, that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. VTL§ 388 (McKinney). Here, Defendants did not deny ownership of the vehicle or deny that the Plaintiff was within the crosswalk at the time of the accident. Thus, Plaintiff established prima facie, his entitlement to summary judgment by submitting his deposition transcript and the pleadings, which demonstrated that the sole proximate cause of the accident was the negligence of the Defendants for failing to yield to the Plaintiff at the crosswalk. Therefore, Plaintiff's motion for an order granting summary judgment in his favor on the issue of liability is granted.

As to the aspect of Plaintiff's motion seeking dismissal of Defendants’ third affirmative defense of Plaintiff's culpable conduct, Plaintiff has made a prima facie showing that he bears no such fault (see Soto-Maroquin v Mellet, 63 AD3d 449 [1st Dept 2009]), and Defendants failed to raise a triable issue of fact. Accordingly, Defendants’ third affirmative defense of Plaintiff's culpable conduct is dismissed.

Motion Sequence #3, Serious Injury Threshold

In this case, Defendants established that Plaintiff's alleged injuries were not permanent or significant in nature. Defendants accomplished this by submitting a sworn report from orthopedist Dr. Salvatore Corso who found normal or near-normal ranges of motion in the allegedly injured body parts, and all diagnostic testing was either normal or negative. Dr. Corso opined within a reasonable degree of medical certainty that the Plaintiff has no orthopedic disability permanency or residuals (Riollano v. Leavey, 173 AD3d 494, 495 [1st Dept. 2019]).

In opposition to the motion, Plaintiff raised a triable issue of fact as to whether he sustained a “permanent consequential” or “significant” limitation of use of his lumbar and cervical spine, as well as his right shoulder and left knee. Plaintiff submitted affirmed treatment records showing that he complained of pain and had significant range-of-motion limitations in the injured body parts shortly after the accident and recently. In an affirmation, Dr. Alexandra Carrer, reports recent persisting limitations in Plaintiff's right shoulder and left knee. Additionally, Dr. Brian Haftel reports in his affirmation recent persisting limitations in Plaintiff's cervical and lumbar spine. Both doctors conclude that Plaintiff's injuries are causally related to the accident and recommend further treatment. If Plaintiff prevails on his permanent consequential limitation or significant limitation claim for any of his claimed injuries, he will be entitled to recover damages to compensate him for all injuries caused by the accident, whether or not they meet the meet the serious injury threshold (see Vishevnik v Bouna, 147 AD3d 657, 658 [1st Dept 2017]; Martinez, 95 AD3d at 683). The Court did not consider the Metro Pain/Primavera chiropractor records (NYSCEF Doc # 57) because the record must be sworn to or affirmed by the medical provider not the custodian of records (See Irizarry v. Lindor, 110 AD3d 846 [2d Dept 2013]). Plaintiff's affidavit was not considered by the Court as it (NYSCEF Doc #56) is insufficient to rebut medical findings.

As to Defendants’ branch of the motion, which argues that the proof rules out a serious injury based on the 90/180-day claim, the Court finds that Defendants have not established their entitlement to summary judgment as to the 90/180-day claim. Defendants’ motion is based on insufficient proof as Defendants’ medical expert who examined Plaintiff more than 2 years after the accident failed to address Plaintiff's condition or limitations within the first 180 days following the accident which is necessary to foreclose the 90/180 day category, (see Harris v. Vogler, 187 AD3d 1392 [3rd Dept 2020]; see also Kaakyire v. Soto, 151 NYS 3d 891 [1st Dept 2021]; Lazzari v. Qualcon Constr., LLC, 162 AD3d 440, 441-442 [1st Dept 2018]; Martinez v Goldmag Hacking Corp., 95 AD3d 682, 683 [1st Dept 2012]). Nor did Defendants submit other evidence, such as medical records or deposition testimony to disprove Plaintiff's claim that he was confined to home and disabled from work during the relevant 180-day period (See Seepersaud v. L & M Bus Corp., 140 AD3d 579 [1st Dept. 2016]).

Finally, there is no evidence on this record that Plaintiff sustained a “permanent loss of use” of any body part - which requires a “total” loss of use (Swift v. New York City Transit Authority, 115 AD3d 507, 509 [1st Dept. 2014]).

The Court accordingly finds that there remain issues of fact as to whether Plaintiff sustained a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of the Insurance Law § 5102(d).

The Court has considered that parties’ remaining arguments and finds them unavailing.

Accordingly, it is hereby

ORDERED that Plaintiff's motion (Mot. Seq. #2) is granted, and Plaintiff is entitled to summary judgment on the issue of Defendants’ liability, and it is further

ORDERED that Defendants’ third affirmative defense of Plaintiff's culpable conduct is dismissed, and it is further

ORDERED that the Clerk of the Court is directed to enter judgment as to liability in favor of the Plaintiff and against the Defendants and dismissing Defendants’ third affirmative defense alleging culpable conduct, and it is further

ORDERED that Defendants’ motion (Mot. Seq. #3) is granted only to the extent of dismissing the “total loss of use” claim.

This constitutes the Decision and Order of this Court.

Bianka Perez, J.