Appellate Division, First Department Orders that Inconsistencies in Plaintiff’s Evidence Preclude Summary Judgment

The Supreme Court of the State of New York, Appellate Division, First Judicial Department reversed an order by the Supreme Court of Bronx County that granted the plaintiff’s motion for partial summary judgment in a scooter accident case.

The plaintiff was riding a scooter northbound on Riverside Drive, a two-way street, when he encountered the defendant. The defendant, driving a car, was waiting in the left turn lane of southbound Riverside Drive. When the defendant attempted to turn left onto 88th Street, she hit the plaintiff’s scooter in the intersection. A police officer responded to the scene of the crash and spoke with the plaintiff and an eyewitness. According to the certified police report, the plaintiff told the officer he didn’t remember anything before the crash. However, an eyewitness told the officer that while the defendant caused the accident when she pulled into oncoming traffic, the plaintiff was driving his scooter at 40 to 50 miles per hour.

The plaintiff filed a motion for partial summary judgment on the issue of the defendant’s liability for the car crash. The plaintiff argued that the defendant’s conduct while driving, as well as her confession that she never saw him or his scooter until after the crash, was enough to establish a prima facie violation of the Vehicle and Traffic Law. In support of his motion, the plaintiff included the certified police report. The plaintiff also included an affidavit from himself, as well as an affidavit from the eyewitness. However, the affidavits contradicted the police report. In his own affidavit, the plaintiff said he did remember the crash and that he had attempted to brake before the crash. The eyewitness’s affidavit stated that the plaintiff appeared to be driving at the speed of the normal flow of traffic at that time.

The defendant opposed the motion, arguing summary judgment was not proper because the plaintiff’s motion, police report, and affidavits did not prove where the plaintiff was in the intersection when the defendant began the left turn. In addition, the defendant argued that it was still disputed whether the plaintiff was speeding at the time of the accident and whether the plaintiff had used reasonable care to avoid the accident.

Here, the plaintiff alleges the defendant violated Vehicle and Traffic Law Section 1141. This law states that any driver turning left must yield the right of way to a driver approaching from the opposite direction who is either in the intersection or close enough to create an immediate hazard. Thus, if the plaintiff proves that his scooter was in the intersection or close enough to create an immediate hazard or risk of a crash, yet the driver attempted to turn left anyway without yielding to the plaintiff, then the plaintiff should win.

However, the defendant does have some cognizable defenses. First, courts in New York require that a victim of the car crash use reasonable care to avoid the accident. This may be why the plaintiff decided to include an affidavit in which he stated that he had attempted to brake prior to the accident. This was meant to serve as proof that he had used reasonable care (braking) to avoid the crash.

Second, motions for summary judgment or partial summary judgment are only to be granted when there is no issue at dispute for the court to try. The plaintiff is attempting to argue that there is no dispute as to whether the defendant violated the law on left turns. However, this is not necessarily the case. By introducing the police report and the affidavits into the record as attachments to the motion for partial summary judgment, the court is now aware of inconsistencies in the plaintiff’s claims. This creates an issue of material fact. Was the plaintiff speeding at the time of the crash? Did the plaintiff act negligently, and if so, did this negligence contribute to the cause of the crash? Did the defendant violate Vehicle and Traffic Law Section 1141? Because these issues remain outstanding, the lower court’s order granting the plaintiff’s motion for partial summary judgment was reversed so that the court can try the outstanding issues.

If you or a loved one has been injured in an auto accident, please do not hesitate to contact the New York automobile injury expert attorneys at Gallivan & Gallivan today to discuss your potential claim.

Espinal v. Volunteers of Am.-Greater N.Y., Inc., 2014 NY Slip Op 07260

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