The following papers numbered 1 to 11 were read on this motion by defendants in Action No. 1, TULSI PERSAUD and BRIJLALL PERSAUD, for an order pursuant to CPLR 3212 granting summary judgment in favor of said defendants and dismissing the complaint of plaintiff CHINTAI CHINAPPEN in Action No. 1:

Papers Numbered

Notice of Motion-Affidavits-Exhibits................1 - 5 [*2]

Affirmation in Opposition...........................6 - 8

Reply Affirmation...................................9 - 11

_________________________________________________________________

This is a personal injury action in which plaintiff, CHINTAI CHINAPPEN, seeks to recover damages for injuries she sustained as a result of a motor vehicle accident that occurred between her vehicle and the vehicle owned by defendant BRIJLALL PERSAUD and operated by defendant TULSI PERSAUD on June 14, 2009 on 109th Avenue near its intersection with 116th Street, Queens County, New York. The plaintiff contends that as a result of the accident she sustained serious physical injuries.

Plaintiff commenced an action by filing a summons and complaint on April 23, 2010. Defendant in Action No. 1, Tulsi Persaud, commenced an action in Bronx County against Willima Tandrian and Chintai Chinappen which action was consolidated for joint trial by order of Justice Ritholtz dated April 7, 2011. In that action Persaud seeks damages for injuries he sustained in the accident.

Keith E. Ford, Esq., counsel for the defendants in Action No. 1 asserts that defendant Persaud is not liable for the causation of the accident and moves for an order pursuant to CPLR 3212(b) granting summary judgment and dismissing the plaintiff's complaint. In support of the motion for summary judgment, counsel submits his own affidavit, a copy of the pleadings, a copy of plaintiff's verified bill of particulars, and copies of the transcripts of the examinations before trial of Chintai Chinappen and Tulsi Persaud.

Ms. Chinappen, age 56, testified at her examination before trial held on May 18, 2011, that at approximately 9:00 or 9:15 p.m she was driving her vehicle eastbound on 109th Avenue in Queens County heading towards the intersection at 116th Street. She described 109th Avenue in that area as a four lane road with two lanes in each direction separated by a double yellow line. There is also a lane for parking in each direction. She stated that she turned from 115th Street onto 109th Avenue and as she approached the light at 116th Street there was a double parked car three feet from the intersection. When she saw the double parked car, she put her turn signal on, slowed down and moved her vehicle into the left lane to go around the double parked vehicle. She conceded that when she changed lanes part of her vehicle crossed the double yellow line into the westbound lanes. She then observed the defendants' vehicle completely in the westbound lanes coming towards her vehicle from the opposite [*3]direction and stated, "while I was changing, I saw the car coming, but the car was speeding so there is no way I could have put my car, straightened the car up." She stated that defendants' car was speeding at approximately 40-50 miles per hour. She stated that she did not observe the defendants' vehicle before she started to change lanes but that as she was changing lanes she first observed the vehicle when her vehicle was about 6 - 8 feet away. After the impact the front of her vehicle was still across the yellow line. She testified that prior to the impact she observed Persuad's vehicle run a red light at the intersection and told the police officer at the scene that the other vehicle went through a red light at the intersection prior to striking her vehicle.

The plaintiff provided an errata sheet in which she made several corrections to her testimony. The errata sheet states that there was actually only one lane in each direction in addition to the parking lane rather than two lanes in each direction. She states that her rate of speed was 10-15 miles per hour. She stated that she crossed the double yellow line as that was the only way she could pass the double parked vehicle.

Defendant Persaud testified at his examination before trial, taken on May 16, 2011, that on the date of the accident he was heading westbound on 109th Avenue. He described 109th Avenue in that area as having one lane of traffic moving in each direction in addition to a parking lane with a double yellow line separating the traffic going in opposite directions. He testified that he had a green signal in his direction when he reached the intersection of 116th Street. He specifically denied that he ran a red light at that intersection. He stated that his highest rate of speed on 109th Avenue was under 30 miles per hour. After he passed through the intersection he observed the double parked car on the other side of 109th about three car lengths from the intersection. He observed the plaintiff's vehicle about 2 seconds prior to the impact coming straight at his car from the opposite direction. When he first observed plaintiff's vehicle it was at an angle coming from behind the double parked car and the whole front was over the double line. He stated that he immediately slammed on the brake and looked to his right to see if he could move over, he stated however, that by that point he did not have any time to avoid the collision. When the police came to the scene he explained that he was heading one way on 109th Avenue when the other vehicle came from behind a double parked car and collided with his vehicle. Persaud has also brought a claim for damages under Action No. 2 for serious personal injuries he sustained as a result of the accident. [*4]

Defendants' counsel contends that the actions of Ms. Chinappen in crossing the double yellow line and placing her vehicle into the opposite lane of traffic in order to maneuver her vehicle around the double parked car 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 crossing over into oncoming traffic, which she admitted to the officer on the scene and in her examination before trial, violated VTL § 1126(a). Further, counsel claims that the defendant was faced with an emergency situation and therefore no liability for the occurrence of the subject accident can be attributed to any acts or omissions on his part. Moreover, counsel contends that plaintiff, who was lawfully proceeding in his proper lane of traffic is not required to anticipate that a vehicle proceeding in the opposite direction will cross-over into oncoming traffic (see Tsai v Zong-Ling Duh, 79 AD3d 1020[2d Dept. 2010]; Snemyr v. W.A. Morales-Aparicio, 47 AD3d 702 [2d Dept. 2008] [the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting evidence showing that defendant violated Vehicle and Traffic Law § 1126 (a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing the collision]; Foster v Sanchez, 17 AD3d 312 [2d Dept. 2005] [crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126 (a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making]; Wasson v Szafarski, 6 AD3d 1182 [4th Dept. 2004]). Defendants' counsel contends that the actions of Ms. Chinappen in crossing a double yellow line and driving into oncoming traffic was the sole proximate cause of the accident.

In opposition to the motion, plaintiff's counsel contends that plaintiff's affidavit and deposition testimony raises a material issue of fact regarding the comparative negligence of the Persaud vehicle. Counsel contends that Ms. Chinappen's testimony regarding Persuad's running a red light and driving at an excessive rate of speed raises material questions of fact as to whether Persuad's actions were also a proximate cause of the accident.

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]). [*5]

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

Vehicle and Traffic Law § 1126(a) states:

(a) When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings.

It is not disputed that the plaintiff crossed the double yellow line into oncoming traffic in order to get around a double parked vehicle in her lane of traffic. Therefore, this court finds that defendants made a prima facie showing that the plaintiff was negligent as a matter of law by establishing that the accident occurred when the plaintiff drove her vehicle across a double yellow line in violation of Vehicle and Traffic Law § 1126 (a) in an attempt to go around the double parked car (see Vehicle and Traffic Law § 1126[a]; Barbaruolo v DiFede, 73 AD3d 957 (2d Dept. 2010]; DiSiena v Giammarino, 72 AD3d 873 [2d Dept. 2010]).

However, the defendants failed to establish, prima facie, that although plaintiff was negligent in the operation of her vehicle, such negligence was the sole proximate cause of the collision. "The proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; also see Gardella v Esposito Foods, Inc., 80 AD3d 660,[2d Dept. 2011]). The deposition testimony of Chinappen, submitted in support of defendants' motion, raises a question of fact as to whether the defendant driver was completely free of any negligence on his part. Ms. Chinappen testified that she believed defendant was proceeding at an excessive rate of speed and ran the red light prior crossing the nearby intersection. Thus, the defendants' motion papers failed to establish, prima facie, that Persaud was free from negligence in the operation of his vehicle and that negligence on his part was not also a proximate cause of the collision (see Scopin v Goolsby, 88 AD3d 782 [2d Dept. 2011]; Ruthinoski v Brinkman, 63 AD3d 900 [2d Dept. 2009]; Exime v Williams, 45 AD3d 633 [2d Dept. 2007]).

Therefore, this court finds that the defendants failed to establish their prima facie entitlement to judgment as a matter of law. Viewing the evidence submitted in support of the defendants' motion in the light most favorable to the nonmoving [*6]party there is a triable issue of fact as to whether any comparative negligence on the defendant's part such as excessive speed or running the red light prior to crossing the intersection contributed to the accident (see Roman v A1 Limousine, Inc., 76 AD3d 552 [2d Dept. 2010]; Eastmond v Wen Po Wong, 300 AD2d 344[2d Dept. 2002]).

Accordingly, for all of the above-stated reasons, the defendants' motion for summary judgment dismissing the complaint is denied.

Dated : Long Island City, NY

February 14, 2011

______________________________

ROBERT J. MCDONALD, J.S.C.

OCA e-submission: no Judge E-Mail