Coffey v. Parasram

2020 NY Slip Op 34986(U)

TERENCE COFFEY, Plaintiff, v. RAJPAUL PARASRAM, Defendant.

CAL. No. 19-01611MV Mot. Seq. 001-MG

Index No. 18-613593

Supreme Court, Suffolk County

March 9, 2020

Unpublished Opinion

MOTION DATE 10-23-19

ADJ. DATE 10-23-19

HACKETT LAW P.C. Attorney for Plaintiff

LAW OFFICES OF KAREN L. LA WREN CE Attorney for Defendant

HON DAVID T. REILLY JUDGE.

Upon the following papers numbered read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated September 17. 2019 Notice of Cross Motion and supporting papers ____; Answering Affidavits and supporting papers by defendant, dated October 1, 2019; Replying Affidavits and supporting papers ____ Other____; (and after hearing counsel in support and opposed1 to the motion) it is, ORDERED that the motion by plaintiff for summary judgment in his favor on the issue of defendant's negligence is granted.

This is an action to recover damages for injuries allegedly sustained by plaintiff Terrence Coffey as a result of a motor vehicle accident, which allegedly occurred at approximately 7:05 a.m., on July 5, 2018 at the intersection of Long Island Avenue and Rodeo Drive in Islip, New York when a vehicle operated and owned by defendant Rajpaul Parasram attempted to make a left turn and struck plaintiffs vehicle.

Plaintiff now moves for summary judgment in his favor on the issue of liability on the ground that defendant violated Vehicle and Traffic Law § 1141 by making a left turn into the path of his vehicle traveling with the right-of-way. In support of his motion, plaintiff submits, among other things, his affidavit and the transcript of defendant's deposition testimony. Defendant does not dispute his negligence.

In his affidavit, plaintiff avers that there were no traffic control devices at the subject intersection. He contends that prior to the accident, his vehicle was traveling westbound on Long Island Avenue, and defendant's vehicle was traveling eastbound on Long Island Avenue. He further contends that the accident occurred when defendant's vehicle attempted to make a left turn onto Rodeo Drive and struck his vehicle which was already in the subject intersection.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 87N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require atrial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., supra).

To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Simon v Rent-A-Center K, Inc., ____ A.D.3d ____, 2020 NY Slip Op 01379 [2d Dept 2020]; Samouhi v Retamales, A.D.3d, 2020 NY Slip Op 01378 [2d Dept 2020]). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Simon v Rent-A-Center E, Inc., supra; Edwards v J&D Express Serv.Corp., ____ A.D.3d ____, 2020 NY Slip Op 01145 [2d Dept 2020]; Spratley v Lafortune, 176 A.D.3d 1247, 109 N.Y.S.3d 667 [2d Dept 2019]). Pursuant to Vehicle and Traffic Law § 1141, a vehicle intending to turn left within an intersection must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard (see Brodney v Picini, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]; Ming-FaiJon v Wager, 165 A.D.3d 1253, 87N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86 N.Y.S.3d 562 [2d Dept 2018]). Although a driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws requiring them to yield to him or her, a driver with the right-of-way still has a duty to use reasonable care to avoid a collision (see Ballentine v Perrone, 179 A.D.3d 993 114 N.Y.S.3d 696 [2d Dept 2020]; Fernandez v American United Transp., Inc., 177 A.D.3d 704, 113 N.Y.S.3d 145 [2d Dept 2019]; Jeong Sook Lee-Son v Doe, 170 A.D.3d 973, 96N.Y.S.3d302 [2d Dept 2019]). Nonetheless, a driver with the right-of-way, who only has seconds to react to a vehicle which has failed to yield, is not comparatively negligent for failing to avoid the collision (see Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 2019]; Fernandez v American United Transp., Inc., supra; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]). Further, a driver is negligent if he or she fails to see that which, through the proper use of his or her senses, should have been seen (see Shvydkaya v Park Ave. BMW Acura Motor Corp., 172 A.D.3d 1130, 100 N.Y.S.3d 320 [2d Dept 2019]; Aponte v Vani, 155 A.D.3d 929, 64 N.Y.S.3d 123 [2d Dept 2017]; Pivetz v Brusca, 145 A.D.3d 806, 43 N.Y.S.3d 457[2d Dept 2016]).

Plaintiff established his prima facie...