The following papers numbered 1 to 13 were read on this motion by the defendant for an order pursuant to CPLR 3212 granting summary on the issue of liability and dismissing the plaintiff's complaint or in the alternative for an order compelling the plaintiff to appear for an IME:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits................1 - 6

Affirmation in Opposition-Affidavits-Exhibits.......7 - 9

Reply Affirmation-Exhibits.........................11 - 13

_________________________________________________________________

This is a personal injury action in which plaintiff, JOSEPH BERRERA("plaintiff"), seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on May 15, 2009, at approximately 10:00 p.m., in front of 141-14 Jewel Avenue, Flushing, New York. At the time of the accident, plaintiff was a pedestrian who was struck by the motor vehicle owned and operated by SHAOHUA YIN ("defendant"). As a result of the accident the plaintiff sustained severe facial fractures and brain injuries. Plaintiff commenced this action by the filing of a summons and verified complaint on November 15, 2010. Issue was [*2]joined by service of defendant's verified answer dated December 7, 2010.

The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the plaintiff's complaint. In support of the motion, the plaintiff submits an affidavit from counsel, Francis J. Leone, Esq., a copy of the pleadings, copies of the transcripts of the examinations before trial of plaintiff and defendant, a copy the police accident report (MV-104A), and a copy of the accident report submitted by the defendant to the New York State Department of Motor Vehicles (MV-104).

In his examination before trial, taken on June 8, 2011, plaintiff, Joseph Berrera, age 30, states that on the afternoon of May 15, 2009, he was walking from his home to his grandmother's house together with three friends. He stated that before he left his house he drank three twelve ounce bottles of beer but he did not feel intoxicated. He was crossing Jewel Avenue with three friends in the middle of the block between 141st Street and Main Street. He looked both ways and began to slowly cross first and as he was half way across the street he stopped to wait for his friend Jasmine. He was then struck by the automobile operated by the defendant. He testified that he did not see the defendant's vehicle prior to being struck. He stated that in the area where he was struck there was no crosswalk. He does not remember anything else that happened after the impact other than waking up in the hospital where he remained for over one month. At the time of the examination before trial he was a patient at Park Terrace Rehabilitation Center where he was continuing to recuperate from his injuries.

The defendant's examination before trial took place on July 25, 2011. She testified that on the date in question she was traveling from her home to her friend's house. She stated that she was traveling on Queens Boulevard and made a left hand turn onto Jewel Avenue. She stated that stopped at a red traffic signal at the intersection of Jewel and 141st Street. After the light changed to green she proceeded on Jewel Avenue in a eastbound direction towards Main Street at a rate of 10 miles per hour. She first observed three people on the sidewalk. As she got closer they stepped into the roadway walking side by side. She then observed them crossing the street walking towards the double yellow line in the middle of the street. She stated, "I saw them going towards the middle and I was going to stop and then I saw them stop so I just continue normally. I just continued [*3]normally." She stated that after she saw them in the street she maintained the same speed. Defendant did not sound her horn. She then observed the group stop at the double yellow line and just stand there. She testified that she believed they stood on the double yellow line waiting for her to pass. Plaintiff testified that although she considered stopping to let them go she did not stop because they just stood there. When asked how the accident happened she stated that, "out of the three who stood there, one suddenly came out." She stated that at that point her vehicle was half a car length away and there wasn't enough time for her to stop. After her car came into contact with the plaintiff it then made contact with a parked car and a light pole. When asked if she slowed her vehicle down as she approached the three people who were standing on the double yellow lines she stated, "no." In addition, when she saw the individual step out from the yellow line she did not put her foot on the brake although she stated that she attempted to steer her vehicle away. Defendant testified that she saw the individuals drinking beverages while on the double yellow line.

The police accident contains a description of the accident based upon statements from an eyewitness and from the defendant. The report states that "at t/p/o witness and operator of vehicle No. 1 (defendant) states, group of apparently intoxicated individuals walked into westbound traffic on Jewel Avenue when Veh. No. 1 struck pedestrian. PO did not witness."

Counsel for the defendant contends that the complaint must be dismissed as the proof establishes that the plaintiff was intoxicated and was negligent in that he crossed the roadway outside of a marked crosswalk and failed to yield the right of way to the defendant's vehicle in Violation of Vehicle and Traffic Law § 1152. Counsel contends that the plaintiff was negligent as he breached his statutory duty by stepping out into traffic, failing to yield the right of way to the defendant's vehicle and failing to take precautions.

In opposition, plaintiff's counsel contends that although the defendant asserts that the plaintiff was comparatively negligent in crossing the street outside a crosswalk and failing to yield to traffic, the defendant did not submit evidence which established her own freedom from negligence.

In his affidavit in opposition to the motion, plaintiff states that although he consumed three beers prior to the accident, it did not impair his judgment or his ability to walk. He states that he did not see the vehicle that struck him prior to the accident. He states that "at the time of the accident, I [*4]was half-way across the street when I was struck by the vehicle. I had previously looked both ways to my left and right and did not see any vehicles approaching when I was crossing the street."

Counsel contends that the deposition testimony of the parties raises material questions of fact concerning the defendant's own negligence in failing to operate her vehicle to avoid colliding with the plaintiff in violation of VTL 1146(a); defendant's failure to sound her horn after she observed the plaintiff in the street; defendant's failure to slow down after she observed and approached the plaintiff in the street; and her failure to stop and permit the plaintiff to continue across the street. Counsel asserts that as such, the defendant has failed to make a prima facie case demonstrating the plaintiff's negligence as a matter of law and failed to demonstrate her own freedom from negligence as a matter of law.

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]).

Summary judgment on the issue of negligence will be denied where triable issues of fact exist concerning whether defendant was negligent and whether the defendant exercised due care to avoid striking a pedestrian(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]).

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the defendant's motion for summary judgment is denied.

Here the defendant failed to establish, prima facie, that plaintiff was negligent as a matter of law in crossing the street and that such negligence was the sole proximate cause of the collision. Here, there is no dispute that the plaintiff crossed in mid-block where there was no crosswalk. In such circumstances VTL 1152 states that pedestrians crossing at a roadway at any other point other than within a marked crosswalk shall yield the right of way to all vehicles upon the roadway (see Billingy v Blagrove, 84 AD3d 848 [2d Dept. 2011]; Ryan v Budget Rent a Car, 37 AD3d 698 [2d Dept. 2007]). Thus, although crossing outside the [*5]crosswalk is not negligence as a matter of law, whether the plaintiff exercised reasonable care under the circumstances is a question of fact for the jury (see Parrinello v Davis, 2 AD3d 610[2d Dept. 2003]).

Moreover, "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]). Here the defendant failed to submit evidence sufficient to demonstrate as a matter of law that the defendant driver exercised due care to avoid the subject accident. The defendant-driver had a duty to see that which she should have seen through the proper use of her senses. Here, defendant testified that she observed the plaintiff in the roadway prior to the accident and maintained her speed, failed to sound her horn and failed to slow or stop her vehicle as she approached the plaintiff standing on the double yellow line. As such there are questions of fact as to whether the defendant contributed to the accident by failing to exercise due care in operating her vehicle (see Vehicle and Traffic Law §§ 1146, 1152 [a]; Parrinello v Davis, 2 AD3d 610 [2d Dept. 2003]; Dragunova v Dondero, 305 AD2d 449 [2d Dept. 2003]; Garner v Fox, 265 AD2d 525 [2d Dept. 1999]).

Thus, viewing the evidence submitted in support of the defendant's motion in the light most favorable to the nonmoving party there is a triable issue of fact as to whether any negligence on the defendant's part 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, the defendant's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.

That branch of defendant's motion to compel independent physical examinations of the plaintiff is granted to the extent that the plaintiff is directed to appear for independent medical examinations by defendant's designated physicians at such time as the defendant shall specify. Should the plaintiff be unable to leave the facility at which he resides, the examinations shall take pace at the plaintiff's residential facility. Said examinations shall be completed within 60 days of the date of this order.

Dated: March 15, 2012

Long Island City, NY [*6]

______________________________

ROBERT J. MCDONALD

J.S.C.