This is a personal injury action in which plaintiff, JOHN J. CUEVAS("plaintiff"), seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on January 25, 2010, at approximately 6:45 a.m., at the [*2]intersection of Linden Place and 35th Avenue, Queens County, New York. At the time of the accident, plaintiff, age 48, was a pedestrian who was struck by the motor vehicle owned and operated by SHARON CHAVEZ ("defendant"), age 57. Plaintiff commenced this action by the filing of a summons and verified complaint on June 7, 2010. Issue was joined by service of defendant's verified answer on July 12, 2010.

The plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and for an order setting the matter down for an assessment of damages. In support of the motion, the plaintiff submits an affidavit from counsel, Tara M. Ulezalka, Esq., a copy of the pleadings, plaintiff's affidavit of facts dated September 29, 2010, and a copy the police accident report (MV-104).

In his affidavit the plaintiff states as follows:

"On January 25, 2010, at approximately 6:45 a.m., I was involved in a pedestrian knockdown at the intersection of Linden Place crossing over 35th Avenue from the northeast corner to the southeast corner. I was crossing in the crosswalk with the "WALK" signal. I was approximately 3/4 of the way when I was struck by the Defendant's vehicle. I had been crossing for approximately ten (10) seconds. At the time of the impact I was looking straight ahead toward the "WALK" signal. Approximately 1 - 2 seconds before the impact I noticed headlights coming from behind me on Linden Place, which then turned in my direction. The front passenger side of the vehicle then struck the right side of my body, causing me to roll onto the hood and land on my right knee. I did not hear a horn or screeching tires prior to the impact. After the impact, the defendant SHARON CHAVEZ, who was wearing eye glasses told me that she does not see very well."

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Pursuant to Vehicle and Traffic Law § 1112 (a):

Whenever pedestrians are controlled by pedestrian-control signals exhibiting the words "WALK" or "DON'T WALK", or exhibiting symbols of a walking person or upraised hand, such signals shall indicate and apply to pedestrians as follows;

(a) Steady WALK or walking person. Pedestrians facing such signal may proceed across the roadway in the direction of the signal and shall be given the right of way by other traffic. [*3]

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence showing that the defendant-driver violated Vehicle and Traffic Law § 1112(a) by failing to yield the right of way as he proceeded across the roadway of Linden Place in a crosswalk with the "WALK" sign in his direction and was struck by a motor vehicle making a left turn as he was about three-quarters of the way across the street. According to the plaintiff's affidavit, he could not have avoided the accident as the defendant's vehicle came from behind him as he was almost across the intersection (see Qamar v Kanarek, 2011 NY Slip Op 01820 [2d Dept. 2011] [plaintiff made prima facie case in showing that he exercised due care in crossing the street and that he was struck by the defendant driver, suddenly and without warning, when he was more than halfway across the street, having "almost reached" the curb that he was crossing to]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept. 2009]; Benedikt v Certified Lumber Corporation, 60 AD3d 798 [2d Dept. 2009]; Cavitch v. Mateo, 58 AD3d 592 [2d Dept. 2009]; Sulaiman v Thomas, 54 AD3d 751 [2d Dept. 2008]; Voskin v. Lemel, 52 AD3d 503 [2d Dept. 2008]).

In opposition, the defendant submits an affirmation from counsel, Marcella Gerbasi Crewe, Esq. and an affidavit of facts from the defendant. In her affidavit dated November 10, 2010, the defendant states in relevant part:

"On 1/25/10, a Monday morning at approximately 6:45 AM, I was traveling Southbound on Linden Place approaching 35th Avenue in Queens, New York. I was on my way to work. At this time of day it was dark out, the roadway was poorly lighted. At this time it was raining and the roadway was wet. I had my vehicle lights on and my wiper blades on...At this time I see a green traffic light at the intersection of Linden Place and 35th Avenue for Southbound traffic. I turn my directional on and at about ten miles per hour or less I make a left turn to travel east on 35th Avenue. I cross over the crosswalk and travel eastbound on 35th Avenue when I see a male pedestrian who I now know to be John Cuevas walking in the rain southbound across 35th Avenue in dark and black clothes. He is looking straight ahead and my front right bumper comes into contact with the pedestrian's right side. ..I have no time to avoid this pedestrian since I did not see him until it was too late. This impact was light. ..The pedestrian was east of the crosswalk and not in the crosswalk when crossing 35th Avenue. I believe the pedestrian is at fault because he was wearing dark clothes and was not in the marked crosswalk and was not looking for oncoming traffic."

Summary judgment on the issue of negligence will be denied where triable issues of fact exist concerning whether plaintiff [*4]was comparatively negligent and whether the defendant exercised due care to avoid striking him (see Thoma v Ronai, 82 NY2d 736; Sale v Lee, 49 AD3d 854 [2d Dept. 2008]; Cator v Filipe, 47 AD3d 664 [2d Dept. 2008]; D.F. v Wedge Mascot Corp., 43 AD3d 1372 [4th Dept 2007]).

Although defendant's attorney does not dispute that the plaintiff's affidavit was sufficient to make a prima facie showing of negligence against the defendant, counsel contends that based upon defendant's affidavit in which she states that the plaintiff failed to look to his right or take any evasive efforts to avoid the accident, there is a question of comparative fault that should be submitted to a jury for determination.

Contrary to the defendant's contention, "the affidavit of the defendant driver submitted in opposition to the motion merely raised feigned issues of fact which were are insufficient to defeat a motion for summary judgment" (Benedikt v Certified Lumber Corporation, 60 AD3d 798 [2d Dept. 2009]. The defendant's statement that the plaintiff was not in the marked crosswalk and was not looking for oncoming traffic is belied by her admission that she had no time to avoid striking the pedestrian as she did not see him "until it was too late." In addition, the police report, which is based upon the statements of both parties, states that the plaintiff was in the crosswalk when he was struck. Therefore, this Court finds that the defendant failed to meet her burden of demonstrating a material issue of fact which would preclude summary judgment.

Accordingly, based on the foregoing, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff JOHN J. CUEVAS shall have summary judgment on the issue of liability as against the defendant SHARON CHAVEZ and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that a copy of this order with notice of entry be served on the Clerk of the Trial Term Office and that upon compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for an assessment of damages.

Dated: March 23, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.