| Tapia v Royal Tours Serv., Inc. |
| 2009 NY Slip Op 08606 [67 AD3d 894] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Luis Tapia et al., Appellants, v Royal Tours Service, Inc.,et al., Respondents. |
—[*1] Quirk and Bakalor, P.C., New York, N.Y. (Dara L. Rosenbaum of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Weiss, J.), dated May 27, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint, and denied the plaintiffs'cross motion for summary judgment on the issue of liability and/or to strike the defendants'answer as a sanction for spoliation of evidence.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthe defendants' motion for summary judgment dismissing the complaint and substituting therefora provision denying the motion, and (2) by deleting the provision thereof denying that branch ofthe plaintiffs' cross motion which was to strike the defendants' answer as a sanction for spoliationof evidence and substituting therefor a provision granting that branch of the cross motion to theextent of directing that an adverse inference charge be given at trial as to the missing personnelfile and "19-A safety record file of the defendant Elijah Boone," and otherwise denying thatbranch of the cross motion; as so modified, the order is affirmed, with costs to the plaintiffs.
Manuel Matailo, an adult, allegedly was injured when the bicycle he was riding was struckby a private charter bus owned by the defendant Royal Tours Service, Inc., and operated by thedefendant Elijah Boone. The accident occurred at the intersection of East 57th Street and theentrance of the Queensborough Bridge in Manhattan. It is undisputed that the bus, which wasproceeding along 57th Street in a turning lane, was faced with a traffic control device. When thetraffic signal facing the bus changed to a green left-turn arrow, Boone drove his bus through theintersection and started to make a left turn onto the entrance ramp for the QueensboroughBridge, at which time he struck Matailo while he was on his bicycle in the crosswalk in front ofthe entrance ramp. Guardians appointed for Matailo commenced this action to recover damagesfor his personal injuries. The Supreme Court granted the defendants' motion for summaryjudgment dismissing the complaint and denied the plaintiffs' cross motion for summary judgmenton the issue of liability and/or to strike the defendants' answer as a sanction for spoliation ofevidence. We modify.
Contrary to the defendants' arguments, they failed to establish as a matter of law that [*2]Boone acted with due care under the circumstances. It is notdispositive that Boone had the green light in his favor (see Siegel v Sweeney, 266 AD2d200 [1999]; Costalas v City of New York, 143 AD2d 573, 575 [1988]). A driver with theright-of-way has a duty to use reasonable care to avoid a collision (see Cox v Nunez, 23 AD3d 427[2005]; Romano v 202 Corp., 305 AD2d 576 [2003]).
In this case, the defendants submitted the deposition testimony of a nonparty witness whotestified that he saw Matailo approaching the intersection on his bicycle and entering thecrosswalk. Given that Matailo was there to be seen and was, in fact, visible to a pedestrian fromacross the street, the defendants failed to establish as a matter of law that Boone's failure to seeMatailo, despite his unobstructed view of the intersection, was not negligence or that suchnegligence, if any, did not contribute to the accident (see Romano v 202 Corp., 305AD2d at 577; Kiernan v Edwards, 97 AD2d 750 [1983]).
Moreover, even if Matailo was in the intersection against a traffic signal, there can be morethan one proximate cause of an accident, and the defendants failed to establish as a matter of lawthat their own negligence did not contribute to the occurrence (see Cox v Nunez, 23AD3d at 427; Romano v 202 Corp., 305 AD2d at 577). Therefore, the defendants failedto establish, prima facie, their entitlement to judgment as a matter of law (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
The Supreme Court also properly denied that branch of the plaintiffs' cross motion whichwas for summary judgment on the issue of liability, as they failed to establish as a matter of lawthat Matailo's own negligence did not contribute to the accident (see Bodner vGreenwald, 296 AD2d 564 [2002]; Walker v Dartmouth Plan Leasing Corp., 180AD2d 952 [1992]).
Further, although the plaintiffs demonstrated that the defendants failed to produce, and mayhave either negligently or intentionally destroyed, certain records, including Boone's personneland "19-A safety record file," the plaintiffs did not demonstrate that, as a result, they are"prejudicially bereft of the means of prosecuting this action against the defendants" (Weber v Harley-Davidson Motor Co.,Inc., 58 AD3d 719, 722 [2009] [internal quotation marks omitted]). Therefore, theSupreme Court providently exercised its discretion in declining to strike the defendants' answerfor failure to comply with discovery demands (id.). A lesser sanction, however, waswarranted and, at trial, the plaintiffs are entitled to an adverse inference charge pertaining to thecontent of Boone's missing personnel file and 19-A safety record file (id.; Utica Mut. Ins. Co. v Berkoski OilCo., 58 AD3d 717 [2009]).
We need not reach the defendants' remaining contention in light of our determination(see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]).Mastro, J.P., Santucci, Belen and Chambers, JJ., concur. [See 20 Misc 3d 1109(A), 2008NY Slip Op 51292(U).]