| Moreira v M.K. Travel & Transp., Inc. |
| 2013 NY Slip Op 03645 [106 AD3d 965] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Madalena Moreira, Appellant, v M.K. Travel andTransport, Inc., et al., Respondents. |
—[*1] Nicoletti Gonson Spinner & Owen LLP, New York, N.Y. (Marina A. Spinner andPauline E. Glaser of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Lane, J.), dated July 13, 2012, whichdenied her motion for summary judgment on the issue of liability and granted thedefendants' cross motion to compel her to provide authorizations for the release of hermental health records.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying the plaintiff's motion for summary judgment on the issue of liability, andsubstituting therefor a provision granting the motion; as so modified, the order isaffirmed, without costs or disbursements.
The plaintiff pedestrian was crossing an intersection in Queens within the crosswalkand with the pedestrian crossing signal in her favor when she was struck by a vehicleowned by the defendant M.K. Travel and Transport, Inc., and operated by the defendantTheodore Kilakos, as it turned left into the intersection, causing her to sustain a brokenleg. The plaintiff commenced this action seeking damages for her physical injuries aswell as for her anxiety, mental anguish, and loss of enjoyment of life. The plaintiffmoved for summary judgment on the issue of liability, offering proof that she waited forthe pedestrian crossing signal to display the walk icon, looked both ways before sheentered the intersection, and proceeded to cross the street at a normal pace, walkingwithin the crosswalk, when, a few steps before reaching the opposite sidewalk, she wasstruck by the defendants' vehicle as it turned left into the intersection. In opposition, thedefendants claimed that, at the time of the accident, the pedestrian crossing signal wasflashing the don't walk icon in the plaintiff's direction, the plaintiff was talking on a cellphone, and she "jumped" in front of the defendants' van without warning. The defendantsalso cross-moved to compel the plaintiff to provide authorizations for the release of hermental health records. The Supreme Court denied the plaintiff's motion for summaryjudgment on the issue of liability and granted the defendants' cross motion.
The plaintiff established her prima facie entitlement to judgment as a matter of law[*2]on the issue of liability by demonstrating that sheentered the crosswalk after exercising reasonable care and was walking within thecrosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos wasnegligent in failing to yield the right-of-way (see Traffic Rules and Regs of Cityof NY [34 RCNY] § 4-03 [a] [1] [i]; [c] [1], [2]; Castro v New York City Tr.Auth., 95 AD3d 1056, 1057 [2012]; Cuevas v Chavez, 94 AD3d 803 [2012]; Kusz v New York City Tr.Auth., 88 AD3d 768 [2011]; Martinez v Kreychmar, 84 AD3d 1037, 1038 [2011]; Qamar v Kanarek, 82 AD3d860, 861 [2011]; Larivierev New York City Tr. Auth., 82 AD3d 1165, 1166 [2011]; Klee v Americas Best Bottling Co.,Inc., 60 AD3d 911 [2009]). The assertions made by the defendants in oppositionlacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Qamar vKanarek, 82 AD3d at 861). Accordingly, the Supreme Court should have granted theplaintiff's motion for summary judgment on the issue of liability.
Since the plaintiff sought damages for anxiety, mental anguish, and loss ofenjoyment of life, her mental health records are material and necessary for an accurateassessment of her damages, and the Supreme Court properly granted the defendants'cross motion to compel disclosure of those records (see M.C. v Sylvia Marsh Equities, Inc., 103 AD3d 676[2013]; Amoroso v City of NewYork, 66 AD3d 618 [2009]; Rothstein v Huh, 60 AD3d 839 [2009]; Diamond v Ross OrthopedicGroup, P.C., 41 AD3d 768, 768-769 [2007]). Mastro, J.P., Leventhal, Sgroi andMiller, JJ., concur. [Prior Case History: 2012 NY Slip Op 31933(U).]