Gonzalez v Garcia

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Gonzalez v Garcia 2021 NY Slip Op 33997(U) May 25, 2021 Supreme Court, Westchester County Docket Number: Index No. 50576/2021 Judge: Terry Jane Ruderman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 50576/2021 FILED: WESTCHESTER COUNTY CLERK 05/25/2021 04:44 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/25/2021 coinmenc~ the statutory appeals as of.right of right time for appeals statutory time To coinmenc~ · copy (CPLR 55B[a]), SSH[a)), you areadyised are advised to i;ery<: serve a wcopy (CPLR of this order, with notice notice of of entry, upon aUp~teS. all parties. of . . - . YORK--.' . SUPREME COURT THE STATE STATE OF NEW NEWyqRK O(JRT OF THE SUPREMEC . '. ER- - .- ' . COUNTY COUNTY of OF WESTCHEST WESTCHESTER • • . • ' I . . -.. ·-----. -- __. __.,.: \ __ · ::-· --- ....~--- -_-__ ·. , ~----900••---------_.----· --- _- .;;.. . ___·X . -.~~~~~~~~----~~~~~~~~~~~-~~~----~~~~~~~~~~~~:,.----~~~~~~~~~~~\" . KRYABINA~, JESUS GOMEZ GOMEZ. GONZALEZ GONZALEZ an4:AN)'AS and ANY A SKRY ABINA, JESUS . .. _nd ORDER. -... DECISION.a DECISION-and ORDER No. I1 Sequence No. Motfop_ Sequence ' Mot-ion Index No No ....50576/2021 50576/2021 Index Plaintiffs, Plaintiffs,_· -against~ -against- _ _ ELIJAH GARCIA and CJA an.d .ELIJAHGA;R CS, INC., APPLE INTERCOM AND ELECTRONICS, INC., ELECTR9NI APPLE INTERCOM AND ,." · D~fendapts. Defendants. . . ... .""""'"\~~--X . -.·_ . ~-- ~~ ~~~~~~~-,.~~~~~,.~~'!"'•"'"'••~""!"-•-••.•""! ~'",.-~~~~~~~~~--~"-~~~..;.:,_~---,.~----~~~~..; -~- ~~~-,.~~~~-----•-"!"''"!~--"=!"'~"' --,.- ~~~~~-,.,.~~~,.,.~--"'.";~~ -------::•"!"'"!•""."··~--~ ---... RUDERMAN, , J. RUPERMAN With plairitiffs' The following following papers papers~ere considered in ~onne.ctio.n ~onnecti~n plaintiffs' motion motion for fot an or~er order Were. consid~red The _. .. "' .· . . . . . . ' ~ dismissing. and ability, the-issue.ofl~ granting them_sununar themsumrnary y judgment against defendants on the issue . of . liability, and dismissing defendants.on judgment against granting . . . . --· . . . . . ~ egligence:. compar~tive,n defendants' affirmative affirmative defense of_culpable of culpable conduct conduct .tllld and comparative. negligence: defense defendants' . -. . . . . . Numbered Numbered- , . . . .. .Papers.· ,Papers. Affinnatiori, s, Material-Fact of Notice of Motion,Statemertt of Material Facts, Affinnation, Sfutem~ni Notice· of Motion, ' _ .. , . - ,'. ·. . ·. I_· Exhibits! Exhibitsl":4.:.4 I Opposition, Exhibits in Opposition, Affirmation in Statement QfMaterial Facts, Affinnation E)Chibits ¥aterial Facts, State~ent-of . - -. . ...' Reply Affirmation Affirmation . ·., . ". Reply l1 2 2. 3 and· com.plaint This pers~mal injurya;ction, COmme]1cedby summons and COmplaint filed filed January January 18~ 18, by swpmpn_S -~ctiOD:~ co,mmeµced pers~~al injucy This . . . . . . - . .· ·4 2020;:: at 26, QnOctober curred stQailthat-oc 2021, itivolves involves an accic:lentbetw accident between car and a pedesttianthat occurred on 26,2020', een-!lfl. c~·anda.pede 2021, . . October . . . . .. . . . . . . County,-at York Street'in:New the intersection intersection of Third Avenue and East 104th. 104th,Stree~in ..N.ewYork County, at. approximately approximately and'East Avenue ofThird the ! . . _,,. . . . -· " . ' . · __ . . . ~ . - - . pedestriati ·c:rosshig the street a.m;Plaintiff)esus Gomez >Gonzalez was aapede,striancrossingthe street when when he he was was' :· Gonzalez was ·-PlaintiffJesus Gomez 9: 15 a.m; ~ • . ' - - :.. . . ' t" ! . • ; _,- ""• • . • '· • • • . . . ·• • • ' ' ••·· ' .· - . • l :· .-- Apple owned Garcia~d Elijah knocked down'bya.yeh ddWrl"bya,vehicle operatedbydefendantElijahGarcia~d owned by by qefendant defendant Apple efendant icle operated'byd knocked -~: '!: . . . ··_ ... . . . .. --- :; . .. . . . ' . . . r . " - ',' \.' .. -- . .. ,"' ~ -_ . • . > - ,., -__ • -' . - . . - _\ - .', the an~wer hi the bririgs a _deriv_ative Intercom arid Electronics; Illc. Plaintiff Skryabina bririgs derivative daim. claim. In answer Anya :~kryal;,'ina Plaintiff Anya Electr~nics; lpc. Intercom and • • • > ' ~- • • > . 11 • • culpable of enses clef the afflrmafive include filed to the complaint, defendants defendants include the affirrnativeciefenses of culpable the· complilirit, to response in response filed . ., . .. . . . . . . .. . . . . . -. . -· ': . . -, ~ '. - "." ' ," ~1~ [* 1] 1 of 5 '':'''''. ~ ~ . FILED: WESTCHESTER COUNTY CLERK 05/25/2021 04:44 PM NYSCEF DOC. NO. 24 INDEX NO. 50576/2021 RECEIVED NYSCEF: 05/25/2021 negligence. conduct and and comparative comparative negligence. conduct judgment on summary judgment partial summary support of of plaintiffs' on the issue issue of of motion for partial present motion plaintiffs' present In support on conduct on defendants' liability, liability, and to dismiss dismiss the affirmative affirmative defenses defenses relating relating to culpable culpable conduct defendants' at Avenue at Third Avenue bicycle across was walking plaintiff Gonzalez asserts asserts that that he was walking his bicycle across Third plaintiff Gonzalez part, plaintiff plaintiffss part, within aa comer, within northwest comer, the northwest comer to the northeast comer its intersection intersection with with 104th 104th Street, Street, from the northeast struck by was struck when he was favor, when signal in his favor, marked walk signal and walk light and green light the green with the crosswalk, with marked crosswalk, and was eastbound on 104th traveling eastbound defendants' Garcia's vehicle 104th Street Street and been traveling had been vehicle had vehicle...·Garcia's defendants' vehicle According to with Gonzalez. contact with made contact turning Gonzalez. According vehicle made when his vehicle Avenue when Third Avenue onto Third left onto turning left Gonzalez's affidavit, affidavit, Gonzalez's quadrant from intersection quadrant into the intersection saw the defendants' vehicle forward into from moving forward vehicle moving the defendants' "I saw East from East turn from left-hand tum into a left-hand East 104th Street. Street. It then accelerated into suddenly accelerated then suddenly East 104th by reacted by my position. I reacted towards myposition. 104th Street Street onto onto Third Third Avenue headed towards Avenue and headed 104th inadequate was inadequate there was but there back, but jump back, immediately attempting to jump then attempting and then freezing and immediately freezing crosswalk, pedestrian marked time to safely avoid contact. I was still within the marked pedestrian crosswalk, within still time safely avoid contact. was when the fully "WALK" signal signal still in my favor, favor, when with the "WALK" crosswalk with the crosswalk within the fully within Prior to the front end end of.the of the defendants' side ..Prior struck me on my left side. vehicle struck defendants' vehicle front tires. horn, or impact, sound of of a hom, or screeching screeching tires. hear the sound not hear did not impact, I did first impact, the first Upon the body. Upon "I recall recall two two separate-impa separate.impacts with my body. impact, occurring with cts occurring vehicle defendants' the defendants' vehicle which front passenger comer of of the passenger side comer hard, the front very hard, was very which was the onto the down ontd and.knocked body and struck my left knocked me down of my body side of-my left side the left and the knee and left knee struck after stop not did vehicle defendants' vehicle did pavement and on on top of my stop after the The defendants' bicycle. The my bicycle. top of pavement and impact, was a second there wasa later, there seconds later, first second impact, 1 to 2 seconds approximately 1 and approximately impact, and first impact, into pushed and struck tire also very hard, when the front passenger side struck and pushed into my left left passenger front very hard, when bicycle." against the bicycle." body against knee squeezing my body bicycle, squeezing and the bicycle, knee and that undisputed that of way. It is also undisputed right of the right had the pedestrian, had plaintiff, as a pedestrian, that plaintiff, undisputed that It is undisputed ticketed for a was ticketed police officer, based on the information information provided officer, defendant defendant was reporting police provided to the reporting based on right-of-way to a yield right-of-way violation of New City Administrative 19-190, failure failure to yield Code S§ 19-190, Administrative Code York City New York violation of pedestrian crosswalk. pedestrian in a crosswalk. that states that who states Garcia, who affidavit of In opposition, opposition, defendants defendants submit submit the affidavit of Garcia, -2-2- [* 2] 2 of 5 INDEX NO. 50576/2021 FILED: WESTCHESTER COUNTY CLERK 05/25/2021 04:44 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 05/25/2021 onto 3rd "the traffic traffic light light was was green green so I began began making making a left'-tum left'"ttUllonto 3rd Avenue Avenue at "the 3rd lefMun{onto a making !was While approximately four niiles per hour. While I was making left-turn'onto hour. per rriiles approximately Jesus Avenue, the front front pa~senger's· pa~senger' s side of of my vehicle vehicle lightly lightly ~pped tapped plaintiff plaintiff Jesus venue, the A hand side:· . his· left h~lOdside. with on Gomez Gonzalez's bicycle, on his walking with which he was walking bicycle, whichhe _Gomez· Oonialez's Gomez Jesus plaintiff, Howev~r, my my vehicle vehicle never never came carne into contact contact with with the plaintiff, Jesus Gomez Howev~r, bicycle Gonzalez. The The impact impact to the front of of plaintiff Jrsus Gomez Gomez Gonz~ez's Gonzalez's bicycle plaintiff J~sus the front Gonzalez. per miles yfour approxiµiatel was very light as my vehicle was only traveling at approxhnatelyfour miIes per only traveling was very light my vehicle · hour." hour." Garcia goes goes on to .as·sert assert that that Gonzalez Gonzalez then then asked asked him.for him for money money and and said: said not not to c3:ll call the the police~ police, Garcia . .. ortned and and that that they they .wa!kedto wal-kedto an ATM, ATM, but but once once there, there, Garcia Garcia deci4ed decided. to call call the the police,. police, and ipf ipformed and . . ~. ', Gonzalez that that lie would would not not pay pay the $400 $400 h.e he was was demanding. demanding. He does does nor not deny deny that that Gonzalez Gonzalez Gonzalez down. was knocked knocked down. was Analysis Analysis prima facie showing a prima make must make In order order to be awardecl awarded summary summary judgment, showing movant must judgment, the movant . .. ' . ' ' proof in admissible of entitlement entitlement to .judgment of law, with evidentiary proof admissible form form tsee (see,. · with evidentiary matter of judgment as a matter of viewed ·in m11st be viewed Zuckerman City of o/New York, 49 NY2d [1980]). The evidence evidence must in fue:l;ight thelight NY2d 557 [1980]). New York,49 Zuckerman v City most favorable to the the opponents opponents of of the the motion, motion, and and every every favorable favorable ~nferenc~ inferenc~ m:,ust m}lst be afforded afforded to · . most favorable the non-movants non-movants (se(? (see Gardella Gardella v Remizov, AD3d 977, 977, 979 979 [2d Dept Dept 2,016]);. 2016]). Here, Here, viewing. viewing Remizov, 144 AD3d · the the evidencein evidence in the the light light mostfavorab mostfiworable leto to defendants; defendants; anc! and affording affording thein them every every viable viable favorable favorable . the ,, ·_liability has been inference, a right· righttoto p~ial partial summary summary judgment the issue issue of of defendant's defendant' sliability been judgment on the inference; conduct defenses relating demonstrated, , as,has as has a right-to right .to dismissal-of dismissal of the affirmative affirmative defenses relating to culpable culpable conduct demonstrated part. plaintiffs part. qegligence on plaintiffs comparatiye n,.egligence or comparative "[P]laintiff established, established, prima facie, his entitlement entitlement .tojudgment tojudgment as pr~ma faci~, "[P}laintiff matter of aa matter of law law on the . . . looked that he looked within a crosswalk issue of of liability liability by presenting that he was crosswalk and and that walking within was walking proofthat presenting proof issue Kong, l •822 [2d · AD3d 821, 82 for <;lpproachingtraffic cross" (Hamilton (Hamilton v Kong, 93 AD3d 82}-822 began to cross" before he began <;1pproaching traffic before for -3- [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 05/25/2021 04:44 PM NYSCEF DOC. NO. 24 INDEX NO. 50576/2021 RECEIVED NYSCEF: 05/25/2021 Dept 2012]; 2012]; see Gaston v Vertsberger, Vertsberger, 176 AD3d Dept see also Gaston AD3d 919,919-920 919, 919-920 [2d Dept Dept 2019]). 2019]). The evidentiary materials materials submitted submitted in opposition this motion motion do not establish establish the existence existence of of evidentiary opposition to this issues of of fact as to defendants' defendants' liability. liability. The assertion issues assertion by Garcia Garcia that that his vehicle vehicle made made direct direct contact only only with with Gonzalez's Gonzalez's bicycle contact bicycle rather rather than than directly directly striking striking Gonzalez's Gonzalez's body, body, and that that the impact light, even accepted as true true for these these purposes, purposes, does does not not alter liability. Those Those impact was very very light, even accepted alter his liability. assertions, as well Garcia's claims claims of assertions, well as Garcia's of the interaction interaction that that immediately immediately followed, followed, have have relevance the issue damages. A protest protest that that a vehicle vehicle weighing weighing more more relevance only only as to the issue of of Gonzalez's Gonzalez's damages. than ton merely merely "lightly "lightly tapped" of than a ton tapped" a pedestrian pedestrian or his bicycle bicycle cannot cannot serve serve to negate negate the fact of the accident, when there dispute that that the pedestrian pedestrian was was knocked knocked to the ground ground as accident, especially especially when there is no dispute a result. result. While of comparative While the the absence absence of comparative negligence negligence need need not not be established established by plaintiffs plaintiffs seeking partial partial summary summary judgment City a/New 321 Rodriguez v City of New York, 31 NY3d NY3d 312, 312,321 seeking judgment (see Rodriguez [2018]), the Gonzalez Gonzalez affidavit affidavit also makes [2018]), makes a prima prima facie showing showing of of his lack lack of of comparative comparative negligence or culpable culpable conduct, conduct, and nothing negligence nothing in Garcia's Garcia's affidavit affidavit demonstrates demonstrates the existence existence of of issue of of fact on those any issue those points. points. Nor defendants establish Nor do defendants establish that that plaintiffs' plaintiffs' motion motion for summary summary judgment judgment was was premature, premature, since failed to demonstrate that facts essential essential to oppose oppose to the motion motion were were exclusively exclusively since they they failed demonstrate that within the lmowledge lrnowledge and control of (Buchinger v Jazz Corp:, 95 AD3d of plaintiffs plaintiffs (Buchinger Jazz Leasing Leasing Corp'., AD3d 1053 within and control [2d Dept Dept 2012]). 2012]). This determination determination does This does not eliminate eliminate defendants' defendants' right right to discovery discovery and and a trial trial on the issue of of damages. damages. issue Based the foregoing, hereby Based upon upon the foregoing, it is hereby -4-4- [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 05/25/2021 04:44 PM NYSCEF DOC. NO. 24 INDEX NO. 50576/2021 RECEIVED NYSCEF: 05/25/2021 ORDERED that that the the motion motion for an order order pursuant pursuant to CPLR CPLR 3212 3212 granting granting partial partial summary summary ORDERED judgment to plaintiffs judgment plaintiffs and and against against defendant defendant on the issue issue of of liability, liability, and and dismissing dismissing defendants' defendants' affirmative defenses defenses raising the the issues issues of of culpable culpable conduct conduct and and comparative comparative negligence, negligence, is affirmative . raising .. granted, and it is further further granted, ORDERED ORDERED that that the the parties parties are directed directed to appear appear in the the Preliminary Preliminary Conference Conference Part, Part, at a time time and and manner manner of of which which they they will will be notified notified by that that Part. Part. This constitutes constitutes the the decision decision and and order order of of the the Court. Court. This New York Dated: Dated: White White .P!w,ns, PUW1S, New York May _a:>_,' _a,:)_, 2021 '2021 May ~~-) H0N.~JANE RUDERMAN, J.S.t -5" [* 5] 1 5 of 5

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