PALACIO v. BORO TRANSIT INC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated March 19, 2025. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants Boro Transit, Inc., and Luc Sony Florvil and dismissing their first through seventh and tenth affirmative defenses.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendants, Boro Transit, Inc. (hereinafter Boro Transit), Luc Sony Florvil, and Consolidated Bus Transit, Inc., to recover damages for personal injuries he allegedly sustained in March 2023 when a vehicle he was operating was struck by a school bus operated by Florvil and owned by Boro Transit. Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability against Boro Transit and Florvil and dismissing their first through seventh and tenth affirmative defenses. In an order dated March 19, 2025, the Supreme Court, among other things, granted those branches of the plaintiff's motion. The defendants appeal.

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 (see Van Manen v. New York City Tr. Auth., 230 AD3d 480, 481; Guido v. Dagnese, 214 AD3d 715, 717). “To be entitled to partial summary judgment 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, 31 NY3d 312, 324–325). 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 (see Merino v. Ferrante, 241 AD3d 1449, 1450; Frankel v. Jaroslawicz, 225 AD3d 742, 743).

Here, in support of his motion, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability against Boro Transit and Florvil by submitting evidence that Florvil was negligent in attempting to make a right turn from the left lane in violation of Vehicle and Traffic Law §§ 1128(a) and 1160(a) (see Walker v. Patrix Trucking N.Y. Corp., 115 AD3d 943, 944; Vainer v. DiSalvo, 79 AD3d 1023; cf. City of Stamford v. LaSerna, 247 AD3d 977, 979).

The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the first through seventh and tenth affirmative defenses of Boro Transit and Florvil (see Guido v. Dagnese, 214 AD3d at 716–717; Walker v. Patrix Trucking N.Y. Corp., 115 AD3d at 944). “Although drivers with the right-of-way are entitled to anticipate that other drivers will obey the traffic laws, they nonetheless still have a duty to avoid colliding with other vehicles” (Nesbitt v. Gallant, 149 AD3d 763, 763–764; see Woods v. Burgos, 220 AD3d 688, 689). “However, ‘a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision’ ” (Woods v. Burgos, 220 AD3d at 689, quoting Yelder v. Walters, 64 AD3d 762, 764; see Vigdorchik v. Vigdorchik, 209 AD3d 923, 924). Here, the plaintiff's affirmation established that the defendants' vehicle abruptly turned right from the left lane a split second before the accident occurred and the plaintiff did not have enough time to avoid the accident. In opposition, the defendants failed to raise a triable issue of fact.

Contrary to the defendants' contention, the plaintiff's motion was not premature (see CPLR 3212[f]; Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736, 737). “While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, a party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Yonghong Xia v. Zhao Xian Zeng, 219 AD3d 914, 916 [alterations and internal quotation marks omitted]). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (id. at 916–917 [internal quotation marks omitted]). Here, the defendants 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 or control of the plaintiff. Moreover, the defendants' mere hope or speculation that evidence might be uncovered was insufficient to deny the motion (see Martin v. Copado–Esquivel, 226 AD3d 668, 671; Quintanilla v. Mark, 210 AD3d 713, 715).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against Boro Transit and Florvil and dismissing their first through seventh and tenth affirmative defenses.

IANNACCI, J.P., DOWLING, WAN and LOVE, JJ., concur.