The following papers numbered 1 to 10 were read on this motion by plaintiff ALFREDO VILLA, for an order pursuant to CPLR 3212 granting partial summary judgment in favor of the plaintiff on the issue of liability:

Papers Numbered

Plaintiff's Notice of Motion-Affidavits-Exhibits........1 - 5

Defendant's Affirmation in Opposition...................6 - 8

Plaintiff's Reply.......................................9 - 10

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This is a personal injury action in which plaintiff, ALFREDO VILLA, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on August 9, 2010, at approximately 3:17 p.m. on 31st Avenue between 37th Street and 38th Street in Queens County, New York.

At the time of the accident, the defendant Katherine Leandrou had parked her vehicle in front of 37-12 31st Avenue. Her driver's side door was adjacent to the lane for moving [*2]traffic. As the plaintiff, Alfredo Villa, rode his bicycle past defendant's vehicle, Ms. Leandrou opened her driver's side door into the lane for moving traffic and struck the plaintiff on his bicycle. The plaintiff contends that as a result of the accident he sustained serious physical injuries. The police report contains a description of the accident based upon the statements of the parties. The report states:

"Owner of vehicle No.1 (defendant) states she was exiting her car and opened her door never seeing the bicyclist. She struck the bicyclist on the bike. Bicyclist (plaintiff) states he was traveling east bound on 31st Avenue. When he reached 37-12 31st Avenue owner of veh. #1 opened her door and struck him. Police Officer did not witness accident."

Plaintiff commenced an action against Ms. Leandrou by filing a summons and complaint on August 24, 2010. Issue was joined by service of defendant's verified answer dated September 29, 2010. In her answer the defendant raises the affirmative defense of plaintiff's comparative negligence.

Charles E. Wisell, Esq., counsel for the plaintiff now moves for an order pursuant to CPLR 3212(b) granting partial summary judgment on the issue of liability. In support of the motion for summary judgment, counsel submits his own affidavit, a copy of the pleadings, a copy of the police accident report (MV-104), and copies of the deposition transcripts of the plaintiff and the defendant.

In his examination before trial taken on January 4, 2011, Mr. Villa, age 23, testified that on the date of the accident he and his brother were riding their bicycles on 31st Avenue to Steinway Street to go shopping. Plaintiff's brother was about three feet in front of him. They were riding slowly, approximately 2 feet from the parked cars. He first observed the defendant's vehicle parked on 31st Avenue when he was about 5 feet away. He observed two persons in the vehicle. He testified that he did not change his speed but he moved his bicycle slightly to the left because he didn't know what the persons in the vehicle were going to do. As he was passing the defendant's vehicle, the defendant opened the door which struck the plaintiff on the shoulder and the lower leg. He sustained a deep laceration on his left lower leg which required stitches and he also injured his left knee and left shoulder. The plaintiff testified that he did not see the door open prior to its hitting him. When asked how far the door was open when it struck him, he answered that "it was wide open." After being struck, he did not fall to the ground but managed to hop over and to lean on the car in front of the defendant's vehicle. The plaintiff was treated at the scene by the Fire Department EMTs and he was then taken to the emergency room by ambulance. [*3]

The deposition of defendant, Katherine Leandrou, age 38, was taken on January 4, 2011. She testified that on the date of the accident she was with her boyfriend and they had parked on 31st Avenue to go to a nearby real estate office. She testified that prior to opening her car door she looked in her side view mirror but she did not see plaintiff on his bicycle. The first time she became aware of the plaintiff was when she opened the car door and it came into contact with the his bicycle. She stated that her door was open six to eight inches when it made contact with the plaintiff's left leg. After the accident she got out of her vehicle and approached the plaintiff and told him she was sorry and that she didn't see him. She called 911. When the police arrived the defendant told them that she was exiting the car into the lane of moving traffic and she didn't see anyone coming. She stated that the plaintiff was very close to the door, approximately six inches, and he ran into it.

Plaintiff's counsel contends that the actions of Ms. Leandrou in opening her door onto 31st Avenue, when it was not safe to do so, constitutes negligence as a matter of law and was the sole proximate cause of the accident. Counsel contends that the actions of the defendant in opening her door into traffic, which she admitted to the police officer on the scene, violated VTL § 1214 which provides that:

"§ 1214. Opening and closing vehicle doors

No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers."

Counsel contends that the depositions establish that the defendant opened her door into a lane for moving traffic without checking to see that it was safe to do so, thereby striking the plaintiff's bicycle. He contends that her actions are a violation of VTL § 1214 and therefore constitute negligence as a matter of law. Moreover, counsel contends that plaintiff was free from negligence and had the right to assume that the defendant would obey the traffic rules.

Counsel for defendant James N. Donovan, Esq., submits an affirmation in opposition to the motion. He contends that summary judgment is not warranted because there are conflicting versions of how the accident occurred and questions regarding the comparative negligence of the plaintiff. Counsel states that plaintiff's own testimony is inconsistent, creates issues of fact, and demonstrates that plaintiff's negligence was a [*4]contributing factor to the accident. Specifically counsel contends that there is a material question of fact as to whether the defendant opened her door completely or whether defendant merely opened her door 6 - 8 inches as testified to by the defendant and whether she opened her door when it was reasonably safe to do so. Counsel also claims that there is a question of defendant's comparative negligence in that he admitted he observed people in the car before the door opened and he did not slow down and did not move to his left to avoid the open door. Counsel also claims that the plaintiff failed to prove that his bicycle was equipped with a bell as required by Vehicle and Traffic Law § 1236(b) or that he audibly signaled his approach.

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]).

Upon review of the plaintiff's motion, defendant's opposition and the plaintiff's reply thereto, this court finds as follows:

It is not disputed that the plaintiff was injured when he was struck by the defendant's car door as she was exiting her vehicle into a lane of traffic. The deposition testimony clearly establishes that the defendant violated vehicle and Traffic Law§ 1214 by opening the driver's side door which was adjacent to moving traffic when it was not safe to do so. Although plaintiff testified at her deposition that she looked in her side mirror before opening the door she also testified that she did not see the plaintiff prior to opening the door. The defendant's negligence was established by the defendant's deposition testimony as well as the police report indicating that the defendant admittedly violated Vehicle and Traffic Law § 1214 by opening the door on the side of her car adjacent to moving traffic when it was not reasonably safe to do so and that such action was a proximate cause of the accident (see Montesinos v Cote, 46 AD3d 774 [2d Dept. 2007]; Williams v Persaud, 19 AD3d 686 [2d Dept. 2005]).

As such the defendant was negligent in violating VTL § 1214 and in failing to see what, by the reasonable use of her senses, she should have seen (see Abbas v Salav, 73 AD3d 1100 [2d Dept. 2010]; Laino v Lucchese, 35 AD3d 672 [2d Dept. 2006]; Berner v Koegel, 31 AD3d at 592 [2d Dept. 2006]; Bongiovi v Hoffman, 18 AD3d 686 [2d Dept. 2005]).

A court deciding a motion for summary judgment is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference [*5]from the pleadings and proof submitted by the parties in favor of the opponent to the motion (see Myers v Fir Cab Corp., 64 NY2d 806 [1985]).

Although it is clear that the defendant violated VTL § 1214, this court finds that the deposition testimony of the plaintiff raises questions of fact regarding his comparative negligence. In his deposition he stated that he observed the plaintiff's vehicle from five feet away and he was able to see that there were two persons in the vehicle. He testified that although he was proceeding slowly, upon seeing the individuals in the car he moved his bicycle slightly to the left "because I didn't know what they were about" (see plaintiff's EBT transcript, p.41). Thus, this court finds that there is an issue of fact as to whether the plaintiff, after seeing persons in the vehicle and not being sure of what they were going to do, and having sufficient time to react to the situation, used reasonable care to avoid being hit by the opening door (see Franco v. Rizzo, 61 AD3d 818 [2d Dept. 2009]). A driver with a right of way has a corresponding duty to use reasonable care to avoid a collision (see Wilson v Rosedom, 82 AD3d 970 [2d Dept. 2011]; Cox v Nunez, 23 AD3d 427 [2d Dept. 2005];

The Courts have held in this regard that there can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question for the jury to decide (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Myles v Blain, 81 AD3d 798 [2d Dept. 2011]; Goldenberg v. Palewicz, 65 AD3d 518 [2d Dept. 2008]; Sokolovsky v Mucip, Inc., 32 AD3d 1011 [2d Dept. 2006]; Cox v Nunez, 23 AD3d 427 [2d Dept. 2005]).

Accordingly, this Court finds that there is a question of fact as to whether the plaintiff by his actions could have avoided the accident by the use of reasonable care and whether he was partially at fault for causing the accident. Therefore, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law as the record fails to establish plaintiff's freedom from comparative negligence (see Roman v. A1 Limousine, Inc.,76 AD3d 552 [2d Dept. 2010]; Lum v Wallace, 70 AD3d 1013 [2d Dept. 2010]; Lopez v Reyes-Flores, 52 ASD3d 785 [2d Dept. 2008]; Scibelli v Hopchick, 27 AD3d 720 [2d Dept. 2006]).

Accordingly, the plaintiff's motion for summary judgment on the issue of liability is denied.

Dated: Long Island City, NY

June 2, 2011

__________________

ROBERT J. MCDONALD

J.S.C.