Kruter v. United Parcel Serv. Gen. Servs. Co.

210 A.D.3d 671

177 N.Y.S.3d 692

Gennady KRUTER, respondent,

v.UNITED PARCEL SERVICE GENERAL SERVICES CO., et al., appellants.

2021–03676

Index No. 518064/19

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

Argued—October 3, 2022

November 2, 2022

Kritzer Law Group, Smithtown, NY (David S. Kritzer of counsel), for appellants.

Law Office of Yuriy Prakhin, P.C. (Simon Q. Ramone, White Plains, NY, of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated March 22, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On June 4, 2019, the plaintiff allegedly was injured when the bicycle he was riding was struck by a delivery truck operated by the defendant Dave Charles (hereinafter the driver) and owned by the defendant United Parcel Service, Inc., incorrectly sued herein as United Parcel Service General Services Co. A surveillance video revealed that the plaintiff was riding his bicycle on a sidewalk along Avenue Z in Brooklyn in the same direction that the driver was traveling. While the plaintiff was crossing Ocean Avenue in the crosswalk, the driver turned right from Avenue Z onto Ocean Avenue, striking the plaintiff in the crosswalk.

The plaintiff commenced this personal injury action against the defendants and moved, inter alia, for summary judgment on the issue of liability. In an order dated March 22, 2021, the Supreme Court, among other things, granted that branch of the plaintiff's motion. The defendants appeal.

"In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle's horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road" ( Palma v. Sherman, 55 A.D.3d 891, 891, 867 N.Y.S.2d 111 ). A driver has a "common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses" ( Lieb v. Jacobson, 202 A.D.3d 1072, 1073, 163 N.Y.S.3d 586 ). "There can be more than one proximate cause of a collision" ( Lindner v. Guzman, 163 A.D.3d 947, 948, 82 N.Y.S.3d 476 ).

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting evidence which established that the driver was negligent in failing to see what there was to be seen and in making a turn before it was reasonably safe to do so (see Vehicle and Traffic Law §§ 1142, 1146[a] ; Balladares v. City of New York, 177 A.D.3d 942, 944, 114 N.Y.S.3d 448 ; Harth v. Reyes, 151 A.D.3d 1031,...