Cases

Hockaday v. Hessel

Supreme Court, Appellate Division, First Department, New York.

Thais HOCKADAY, Plaintiff–Respondent,

Richard HESSEL et al., Defendants–Appellants.

1388

Index No. 813356/21

Case No. 2023-01642

Entered: January 11, 2024

Attorneys and Law Firms

Milber Makris Plousadis & Seiden, LLP, Purchase (Otto Cheng of counsel), for appellants.

Michael H. Zhu, P.C., Rego Park (Michael H. Zhu of counsel), for respondent.

Kern, J.P., Singh, Kapnick, O’Neill Levy, JJ.

Opinion

*1 Order, Supreme Court, Bronx County (Bianka Perez, J.), entered March 9, 2023, which granted plaintiff’s motion for partial summary judgment on the issue of liability and striking defendants’ affirmative defenses, unanimously modified, on the law, to deny so much of plaintiff’s motion as sought dismissal of defendants’ affirmative defenses of culpable conduct or comparative fault, and otherwise affirmed, without costs.

Plaintiff made a prima facie showing of her entitlement to judgment as a matter of law on the issue of defendants’ liability through her affidavit demonstrating that she was crossing the street in a wheelchair or motorized scooter, within the crosswalk, with the light in her favor, when she was struck by defendants’ tractor trailer, which was making a left turn across the crosswalk while coming out of a parking lot (see Torres v. Werner Bus Lines, Inc., 157 A.D.3d 624, 67 N.Y.S.3d 635 [1st Dept. 2018]; Hines v. New York City Tr. Auth., 112 A.D.3d 528, 529, 977 N.Y.S.2d 238 [1st Dept. 2013]). However, plaintiff also submitted photographs showing her lying partly within the crosswalk after the accident and a certified police accident report which included witness statements that she was not within the crosswalk. A finding that plaintiff was outside the crosswalk is relevant to plaintiff’s comparative fault, but does not affect the finding that defendant driver was negligent since he violated Vehicle and Traffic Law § 1146, which imposes a superseding duty on drivers to “exercise due care to avoid colliding with any … pedestrian … upon any roadway” (Deitz v. Huibregtse, 25 A.D.3d 645, 646, 808 N.Y.S.2d 737 [2d Dept. 2006]).

In opposition, defendant submitted an affidavit in which he admitted that he did not see plaintiff before the tractor trailer hit her and offered only speculation that he may not have been able to see her because her wheelchair was low. Thus, whether plaintiff was within the crosswalk or near it, the truck driver was at fault for failing to see what was there to be seen as he exited the parking lot into the two-lane road and started turning left into the pedestrian crosswalk (see Wargold v. Hudson Tr. Lines, Inc., 219 A.D.3d 546, 548, 194 N.Y.S.3d 78 [2d Dept. 2023]; Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]).

The conflicting evidence as to whether plaintiff was within or next to the crosswalk and issues as to whether she could have observed the tractor trailer pulling out next to her and avoided it, precludes dismissal of the defense based on comparative fault. However, the defense founded upon the emergency doctrine was properly dismissed given the absence of evidence to indicate defendant truck driver perceived or reacted to an emergency (Pai v. Reliant Transp., Inc., 203 A.D.3d 585, 162 N.Y.S.3d 713 [1st Dept. 2022]). Defendants offer no argument to support the other affirmative defenses, which were properly dismissed.

All Citations

— N.Y.S.3d —-, 2024 WL 117266, 2024 N.Y. Slip Op. 00132

End of Document

Dong v. Cruz-Marte,

Supreme Court, Appellate Division, First Department, New York.

Xuezhen DONG etc., et al., Plaintiffs–Respondents,

Delvin J. CRUZ–MARTE et al., Defendants–Appellants,

Wenhua Sung et al., Defendants–Respondents.

1395

Index No. 23584/17

Case No. 2023–02016

Entered: January 11, 2024

Attorneys and Law Firms

Marshall, Dennehey Warner Coleman & Goggin, P.C., Purchase (Steven Saal of counsel), for Delvin J. Cruz–Marte, appellant.

Foster & Mazzie LLC, New York (Mario A. Batelli of counsel), for Keystone Freight Corporation and Mystic Island Transport Inc., appellants.

Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C., New York (Logan Youngworth–Wright of counsel), for Xuezhen Dong as Administrator of the Estate of Jing Yin Jiang and individually, respondents.

Carman, Callahan & Ingham, LLP, Farmingdale (William A. Healy, IV of counsel), for Wenhua Sung and Gloria Y. Sung, respondents.

Kern, J.P., Oing, Singh, Kapnick, O’Neill Levy, JJ.

Opinion

*1 Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about October 14, 2022, which denied the motion of defendant Delvin J. Cruz–Marte and the motion of defendants Keystone Freight Corporation and Mystic Island Transports, Inc. for summary judgment dismissing all claims and cross-claims as against them, unanimously affirmed, without costs.

Plaintiff’s decedent was killed as he rode an electric bicycle on Broadway. The street was partially blocked by a double-parked vehicle owned by defendants Wenhua Sung and Gloria Y. Sung. As the decedent rode around Sungs’ vehicle to continue on Broadway, he was hit and killed by a tractor–trailer driven by Cruz–Marte and owned by Keystone and Mystic (see Dong v. Cruz–Marte, 189 A.D.3d 613, 134 N.Y.S.3d 710 [1st Dept. 2020]).

Supreme Court properly denied Cruz–Marte’s motion for summary judgment, since issues of fact exist as to whether he was negligent for failing to exercise due care to avoid hitting the decedent (Vehicle and Traffic Law § 1146[a]). Cruz–Marte testified at his deposition that he did not know how close the decedent’s bicycle was to the passenger side of his vehicle before the impact. He also testified that even though he first saw the decedent riding his bicycle about three or four car lengths ahead of him, he did not change the operation of his vehicle in any manner to accommodate the decedent as he passed the Sungs’ double-parked vehicle (id.; see Laracuente v. Ruiz, 304 A.D.2d 478, 479, 758 N.Y.S.2d 641 [1st Dept. 2003]).

Defendants Keystone and Mystic also are not entitled to summary judgment dismissing the complaint as against them. They do not dispute that they own the tractor–trailer that Cruz–Marte was driving or that Cruz–Marte had permission to operate the vehicle when the accident occurred. Thus, they made no showing that they could not be vicariously liable to plaintiff under Vehicle and Traffic Law § 388(1) for Cruz–Marte’s alleged negligence (see Rodriguez v. Morales, 217 A.D.3d 695, 697, 190 N.Y.S.3d 452 [2d Dept. 2023]). Nor did Keystone and Mystic show that they cannot be liable under the theory of respondeat superior for defendant Cruz–Marte’s alleged negligence because they failed to establish that he was not acting in furtherance of his employment-related duties at the time of the incident (see Dimitrakakis v. Bridgecom Intl., Inc., 70 A.D.3d 885, 886–887, 895 N.Y.S.2d 196 [2d Dept. 2010]).

All Citations

— N.Y.S.3d —-, 2024 WL 117238, 2024 N.Y. Slip Op. 00130

End of Document