Kazaryan v Curreri

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Kazaryan v Curreri 2022 NY Slip Op 32660(U) July 28, 2022 Supreme Court, Kings County Docket Number: Index No. 516357/2021 Judge: Carl J. Landicino 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. 516357/2021 FILED: KINGS COUNTY CLERK 08/03/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/08/2022 At an IAS Term, Part 81 (MOA) of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St, Brooklyn, New York on the 28 th day of July, 2022. PRES ENT: HON. CARL J. LANDICINO, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RAZMIK KAZARY AN, DECISION AND ORDER Plaintiff, Index No.: 516357/2021 -against- Motion Sequence # 1 ANTHONY H. CURRERI, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR §22 l 9(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed .............................................. . Opposing Affidavits (Affirmations) ........................................... .. Reply and Sur-Reply Affidavits (Affirmations) .......................... .. 11-20 22-27 28,29 After oral argument and a review of the submissions herein, the Court finds as follows: Plaintiff, Razmik Kazaryan (the "Plaintiff), moves for summary judgment (motion and proceeding to a trial on damages only. The motion sequence #1) on the issue of li~bility ,,.. concerns a collision Plaintiff ha~, while riding his bicycle, with Defendant Anthony Curreri (the "Defendant"), who was driving the vehicle he purpo1tedly owned., on April 7, 2021. Plaintiff contends that Defendant moved around the rear of his bicycle seeking to enter a parking space, when Defendant unexpectedly co!lided with his bicycle. Plaintiff contends that Defendant was negligent and, inter alia, violated VTL l 146(a). Plaintiff further contends that he could not avoid 1 [* 1] 1 of 4 0 INDEX NO. 516357/2021 FILED: KINGS COUNTY CLERK 08/03/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/08/2022 the collision, " ... as the vehicle that struck me was behind my bicycle." (See Plaintiffs affidavit in support). Defendant opposes the motion and contends that it is premature. Defendant also contends that his conflicting version of events serves to defeat Plaintiffs application. Defendant represents that prior to the collision he was stopped with his right turning signal on preparing to enter the parking space. Defendant contends that he looked, but did not see Plaintiff on his electric bicycle, and proceeded to enter the parking space when Plaintiff rode into the passenger side of his vehicle. Defendant further states that Plaintiff was not wearing reflective clothing and did not have his flashers on. Defendant also relies on a video in support of his contentions. A review of the video reflects very little except that the collision occurred. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact/' Kolivas v. Kirchoff, 14 AD3d 493, 787 N.Y.S2d 392 [2d Dept 2005], citing Andre v. Pomeroy, 35 NY2d 361,364,362 N.Y.S.2d 1341 [1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Sheppard-Mobley v. King, 10 AD3d 70, 74, 778 N.Y.S.2d 98 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 NY2d 320, 324, 508 N.Y.S.2d 923 [1986], Winegrad v. New York Univ. Med Ctr., 64 NY2d 851,853,487 N.Y.S.2d 316 [1985]. "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 AD3d 566, 1 N.Y.SJd 280,281 [2d Dept 2015] citing Valentin'v. Parisio, 119 AD3d 854,989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 AD3d 735, 983 N.Y.S.2d 612 [2d Dept 2014]. 2 :i [* 2] 2 of 4 FILED: KINGS COUNTY CLERK 08/03/2022 NYSCEF DOC. NO. 36 INDEX NO. 516357/2021 RECEIVED NYSCEF: 08/08/2022 • Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & flan Real Estate Brokers v Oppenheimer, 148 AD2d 493, 538 N.Y.S.2d 837 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. C,nty. Hous. Afgmi. Corp., 34 AD3d 518, 520. 824 N.Y.S.2d 166, 168 [2d Dept 2006]~ see Menzel v. Plotnick, 202 AD2d 558,610 N.Y.S.2d 50 [2d Dept 1994]. However, "[a] plaintiff is no longer required to show freedom from comparative fault in establishing his or her prim a fc,cie case ... " if they can show " ... that the defendant's negligence was a proximate cause of the alleged injuries." Tsyganash v. Auto Mall Fleet Mgmt., Inc., 163 AD3d 1033, 1034, 83 N.Y.S.3d 74, 75 [2d Dept 2018]; Rodriguez v. City ofNew York, 31 NY3d 312, 320, 101 N.E.3d 366, 371 [20181, As an initial matter, it shduld be noted that the "motion was not premature since the defendantr sl failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff." Turner v. Butler, 139 AD3d 715, 716, 32 N.Y.S.3d 174, 175 [2d Dept 2016]. The Court finds that the actions of the Defendant driver were negligent and a proximate cause of the accident. The Defendant driver was under a duty to see that which was there to be seen and purpmtcdly did not see the Plaintiffs vehicle. See Mu-Jin Chen v. Cardenia, 138 AD3d 1126, 31 N.Y.S.3d 134 [2d Dept 2016]; see also Wilson v. Rosedom, 82 AD3d 970,919 N.Y.S.2d 59 [2d Dept 2011]; see also VTL § I 128(a). However, there are issues of fact remaining in relation to Plaintiffs comparative negligence. 3 [* 3] 3 of 4 INDEX NO. 516357/2021 FILED: KINGS COUNTY CLERK 08/03/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/08/2022 • A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield (see Vazquez v New York City Tr. Auth., 94 AD3d 870, 871, 941 NYS2d 887 [2012]; Bonilla v Calabria, 80 AD3d 720, 915 NYS2d 615 [2011]). However; a driver with the right-of-way also has a duty to use reasonable care to avoid a collision (see Bennett v Granata, 118 AD3d 652, 653, 987 NYS2d 424 [2014]; Regans v Baratta, 106 AD3d 893,894,965 NYS2d 171 [2013]), and "[t]here can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427,427,805 NYS2d 604 [2005]; see Gobin v Delgado, 142 AD3d 1134, 1134, 38 NYS3d 63 [2016]). Beres v. Terranera, 153 AD3d 483,485, 60 N.Y.S.3d 207, 209 [2d Dept 2017]. The Defendant argues that he had slowed down and engaged his turning signal, raising an issue as to whether Plaintiff could· have anticipated the tum and taken evasive action. See Rodriguez v. City ofNew York, 31 N.Y.3d 312,320, 101 N.E.3d 366,371 [2018]; see also Pipinias v. Ferreira, 155 AD3d 1073, 65 N.Y.S.3d 533 [2d Dept 2017]; see also Bermejo v. Khaydarov, 155 AD3d 597, 63 N.Y.S.3d 107 [2d Dept 2017]; see also Pena v. Santana, 5 AD3d 649, 774 N.Y.S.2d 744 [2d Dept 2004]. Accordingly, the Plaintiffs motion (motion sequence #1) is granted solely to the extent that Defendant was negligent and a proximate cause of the accident, and the issue of Plaintiffs ' comparative negligence shall be addressed at trial. The foregoing constitutes the Decision and Order of the Court. ' ENTER: I 4 . [* 4] 4 of 4 ---.. - .,;:. .... --- _

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