| Gonzalez v ARC Interior Constr. |
| 2011 NY Slip Op 02728 [83 AD3d 418] |
| April 5, 2011 |
| Appellate Division, First Department |
| Carmen A. Gonzalez, Appellant, v ARC InteriorConstruction et al., Respondents. |
—[*1] Law Office of James Toomey, New York (Evy L. Kazansky of counsel), forrespondents.
Order, Supreme Court, New York County (George J. Silver, J.), entered June 14, 2010,which, insofar as appealed from as limited by the briefs, upon granting plaintiff's motion forsummary judgment on the issue of liability, directed that the trial on damages would encompassthe issue of plaintiff's comparative fault, unanimously affirmed, without costs.
Plaintiff alleges that a motor vehicle owned by defendant ARC Interior Corporation andoperated by defendant Carmine Mantone struck her as she was walking through an intersection.Plaintiff moved for summary judgment on the issue of liability before any depositions wereconducted. Accordingly, the factual record is sparse, consisting only of the bare allegations in thecomplaint, a certified copy of a police report, a very brief affidavit by plaintiff and an equallybrief affidavit by Mantone. In her affidavit, plaintiff asserts that she was crossing the intersectionwith the light in her favor, and that she had looked for oncoming traffic before proceeding. Thepolice report states that Mantone noticed plaintiff at the "last minute." In his affidavit inopposition, Mantone stated that he made a left turn into the intersection with the light in hisfavor, only after looking into the intersection and observing no pedestrians there. He claimed thathe did not notice plaintiff until the moment of impact.
The motion court found that plaintiff established her prima facie entitlement to summaryjudgment by showing that Mantone failed to yield the right of way. The court stated that, even ifdefendant had raised an issue of fact as to plaintiff's own culpable conduct, this was not a bar togranting plaintiff's motion. The court relied on Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [2010]), inwhich this Court held that "it is not plaintiff's burden to establish defendants' negligence as thesole proximate cause of his injuries in order to make out a prima facie case of negligence" andthat a plaintiff "must generally show that the defendant's negligence was a substantial causeof the events which produced the injury" (72 AD3d at 200 [citation and internal quotationmarks omitted]). The motion court directed that the matter be set down for a trial on damages"which is to encompass the issues of Plaintiff's culpable conduct and the extent to which [her]recovery should be diminished in proportion thereto."
We agree with the court that Tselebis controls this case. Plaintiff demonstrated thatdefendants were liable for her injuries by establishing that she was crossing the street, within thecrosswalk, with the light in her favor, when she was struck by the vehicle driven by Mantone (see [*2]Strauss v Billig, 78 AD3d 415 [2010], lv dismissed16 NY3d 755 [2011]; Beamud vGray, 45 AD3d 257 [2007]). Because comparative negligence is not a complete bar torecovery (CPLR 1411), plaintiff is entitled to summary judgment on her negligence claim.
However, we reject plaintiff's argument that as part of the award of summary judgment, thecourt should have, essentially, dismissed the affirmative defense of culpable conduct as a matterof law. The police report and plaintiff's bare-bones affidavit stating that she looked for oncomingtraffic before crossing the street were insufficient to eliminate any issue of fact whether plaintiffexercised reasonable care in crossing the intersection (see Thoma v Ronai, 189 AD2d635 [1993], affd 82 NY2d 736 [1993]; Lopez v Garcia, 67 AD3d 558 [2009]; Hernandez v New York City Tr. Auth.,52 AD3d 367, 368 [2008]). It is noted again that the motion was made before defendants hadan opportunity to depose plaintiff concerning the circumstances surrounding the accident and testher credibility (see Lopez, 67 AD3d at 558-559; CPLR 3212 [f]; see also Donato v ELRAC, Inc., 18AD3d 696, 698 [2005]). Thus, dismissal of the defense would have been premature.Concur—Tom, J.P., Mazzarelli, Friedman, Renwick and DeGrasse, JJ.