The following papers numbered 1 to 6 were read on this motion by

the plaintiff for an order pursuant to CPLR 3212 granting the plaintiff partial summary judgment against the defendants on the issue of liability:

Papers

Numbered



Notice of Motion-Affirmation-memorandum of Law-

Affidavits-Service-Exhibits...........................1 - 2

Affirmation in Opposition-Affidavits-Exhibits.........3 - 4

Reply Affirmation-Exhibits............................5 - 6

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In this action plaintiff sues to recover damages for personal injuries which arose as the result of a motor vehicle accident which occurred at approximately 2:00 p.m. on May 12, 2010 in Queens County. At the time of the accident the plaintiff, Charlotte Khan was a pedestrian crossing 65th Road at its intersection with 102nd Street. The plaintiff was crossing the street in the crosswalk, at an uncontrolled intersection, when she was struck by the vehicle owned by defendant Nerya Begim and operated by defendant Boris Isakov as he was making a left [*2]turn onto 65th Road from 102nd Street.

Plaintiff commenced this action by the filing of a summons and complaint on October 4, 2010. Issue was joined by service of defendants' answer dated December 8, 2010. Plaintiff moves, prior to the completion of discovery, for an order pursuant to CPLR 3212(b) granting the plaintiff partial summary judgment on the issue of liability on the ground that the defendant driver was negligent as a matter of law.

In support of the motion plaintiff submits an affidavit dated February 18, 2011 in which she states:

"On May 12, 2010, I was a pedestrian lawfully crossing the street on 65th Road at its intersection with 102nd Street, in the County of Queens, State of New York. That I was crossing the street on 65th Road within the marked crosswalk and the intersection was uncontrolled by any traffic lights or other traffic control devices, therefore I had the right of way. That just prior to crossing the street, I checked for oncoming traffic to my right, and there were no vehicles coming, therefore I proceeded to cross the street. All of a sudden, I was struck by the defendant's vehicle on my right side, knocking me to the ground. The defendant was attempting to make a left hand turn from 102nd Street onto 65th Road. That I did not contribute to this accident in any manner and further, there was no way that I could avoid it, as I checked for oncoming vehicles just prior to crossing the street and there were none. Based on the defendant driver's actions, it is clear that the defendant driver's negligence was the sole cause of this accident in that he failed to yield the right of way to me as I was crossing within the marked crosswalk which was uncontrolled."

Plaintiff also submits a certified copy of the police accident report which describes the accident, based upon statements of the parties, as follows:

"MVO No.1 (defendant) states that he was attempting to make a left turn after another vehicle when he collided with the pedestrian who was crossing at the crosswalk. MVO #1 states that he did not see the pedestrian. The pedestrian (plaintiff) stated that she was crossing at the crosswalk on her way to her post as a crossing guard when she was struck by the vehicle. PO didn't witness."

Plaintiff's counsel contends that the defendant driver was negligent as a matter of law as he violated Vehicle and Traffic Law § 1151 (a) which states "when traffic-control signals are not [*3]in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk on the roadway upon which the vehicle is traveling." (Also see New York City Traffic Rules and regulations § 404[b][1]). Counsel also contends that the defendant violated vehicle and Traffic Law § 1146 which requires that: "every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary."

Counsel contends that as the evidence shows that the plaintiff was crossing 65th Road at its intersection with 102nd within the crosswalk when she was struck by defendant's vehicle that the driver was negligent for failing to yield the right of way to the pedestrian as required by VTL §§ 1146 and 1151.

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]).

Here, the proof was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability, including her freedom from comparative fault. The plaintiff's affidavit demonstrated that she was walking within a crosswalk, in an uncontrolled intersection, when the defendant's car, in violation of VTL §§ 1146 and 1151 failed to yield the right-of-way and struck her. Plaintiff further demonstrated that, exercising due care, she had looked for approaching vehicles before she entered the intersection (see Martinez v Kreychmar, 923 NYS2d 648 [2d Dept. 2011]; Qamar v Kanarek, 82 AD3d 860 [2d Dept. 2011]; Lariviere v New York City Tr. Auth., 82 AD3d 1165 [2d Dept. 2011]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Rosenblatt v Venizelos, 49 AD3d 519 [2d Dept. 2008]).

In opposition, defendant's counsel, Hariharan Krishnaraj, Esq., states that the motion for summary judgment is premature as depositions of the parties have yet to be held. Counsel contends that there are evidentiary issues, such as the manner in which plaintiff was crossing the street when she was struck, which were left out of her affidavit. In addition, the defendant, Boris Isakov, submits an affidavit dated June 7, 2011, in which he [*4]states that on the date in question he was attempting to make a left from 102nd Street onto 65th Road. He states that:

"Immediately before the accident, a vehicle was stopped at the stop sign on 65th Road, to my right. When I saw this vehicle at the intersection, I allowed the vehicle to pass from my right to my left, prior to me making my left turn. Right after that vehicle cleared the intersection, I proceeded to make my left turn onto 65th Road, to follow in the same direction as that vehicle. As the vehicle passed from my right to my left, it slightly obstructed my view of the roads at the intersection. I did not see any pedestrian at or in the intersection prior to the accident happening. After the accident I do not know what happened to that vehicle that obstructed my view."

Summary judgment on the issue of negligence will be denied where triable issues of fact exist concerning whether plaintiff was comparatively negligent and whether the defendant exercised due care to avoid striking him (see 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 the difference in both plaintiff's and defendant's statements as to the presence of another car creates a question of fact. This court finds, however, that the defendant driver's affidavit rather than raising a question of fact as to comparative negligence of the pedestrian merely confirms that the defendant was negligent in making a left turn into an uncontrolled intersection while his view was allegedly partially obstructed by a moving vehicle. The defendant admitted that rather than waiting until his view of the intersection was clear and unobstructed prior to making the left turn, he proceeded when his view was obstructed and as a result he failed to see the pedestrian in the intersection prior to striking her (see Sulaiman v Thomas, 54 AD3d 751 [2d Dept. 2008]; Rosenblatt v Venizelos, 49 AD3d 519 [2d Dept. 2008]; Abramov v Miral Corp., 24 AD3d 397 [2d Dept. 2005];

Moreover, the motion for summary judgment was not premature, since the defendant failed "to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff" (Cavitch v Mateo, 58 AD3d at 593 [2d Dept. 2009]; see Martinez v Kreychmar, [*5]supra; Woodard v Thomas, 77 AD3d 738 [2d Dept. 2010]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2d Dept. 2008]; Niyazov v Bradford, 13 AD3d 501 [2d Dept. 2004]).

Accordingly, for all of the above stated reasons, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff CHARLOTTE KHAN shall have summary judgment on the issue of liability as against the defendants BORIS ISAKOV and NERYA BEGIM and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, 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: July 18, 2011

Long Island City, NY

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ROBERT J. MCDONALD, J.S.C.