This is a wrongful death action in which plaintiff, FRANK APPELLO, as Administrator of the Estate of Joseph A. Appello, seeks to recover damages for the wrongful death of Joseph Appello who died as the result of a motor vehicle accident. The accident in question occurred on May 13, 2010, at approximately 12:30 p.m., when the defendant, who was proceeding on the westbound [*2]service road of the Cross Island Parkway, with the light in his favor, struck the decedent, a pedestrian, who was crossing the service road at the intersection of Clintonville Street in a wheelchair.

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, Andrea E. Ferrucci, Esq., a copy of the pleadings, copies of the transcripts of the examinations before trial of defendant, a copy the police accident report (MV-104A), a copy of the witness statement of Robert Compone, and a copy of the Motor Vehicle Accident Mechanism Report of Detective Daugherty.

In his examination before trial, taken on September 16, 2011, defendant Daniel Godley, age 72 at the time of the accident, testified that on the date of the incident he had just pulled out of the Whitestone Shopping Center onto the westbound service road of the Cross Island Parkway on his way home. Defendant was proceeding in the far left lane of the three lane road. When he arrived at the intersection with Clintonville Street he stopped his vehicle at a red traffic signal. He testified that there was a crosswalk at the near corner and the far corner, each crossing the service road in a north/south direction. There were no vehicles in front of him while he waited at the light but there were vehicles next to him in the right and middle lanes. While stopped he did not see any pedestrians walking on the opposite corner where the Sunoco Station was located. When the light turned green he began to accelerate forward at a rate of 10 miles per hour intending to proceed straight through the intersection. He testified that as he began to accelerate he looked straight ahead but he did not look to the left or to the right. He stated that his vehicle crossed the intersection but after 10 or 15 seconds he heard a noise and stopped his vehicle. When he exited he saw that he had struck a pedestrian in a wheelchair 50 feet west of the intersection. He stated that the accident occurred 60 to 70 feet from where he had been stopped for the light. Mr. Godley stated that there was nothing blocking or distracting his vision from being able to see the right forward part of his vehicle. When asked if he saw the man in the wheelchair while he was stopped at the red light he answered that he did not, and further, he never saw the pedestrian crossing the road prior to making contact.

Eyewitness Robert Campone was in a vehicle behind the defendant's vehicle. He stated in his report: "I was driving west bound service road to Cross Island Parkway, when I saw the [*3]wheelchair crossing the service road in the west side crosswalk. The driver in front of me had the green light, the cars in the right and middle lanes almost hit him and then he got hit by the car in front of me (left lane). Wheelchair was in crosswalk but did not having the crossing light."

Defendant Godley also made a statement in a written report stating: "west bound, service road, Cross Island Parkway, in left lane. I was stopped at the light at Clintonville St. The light turned green. About 60-70 feet passed marked crosswalk, I heard a noise. I stopped the car, got out and saw guy on the ground...I never saw guy/the guy crossing middle of road."

Detective Dougherty, in his Motor Vehicle Accident and Mechanism Report states that "Vehicle No.1 was traveling west bound on the service road of the Cross Island Parkway 50 feet west of Clintonville Street. Vehicle #1 did strike the wheelchair who was crossing the service road of the Cross Island Parkway outside of any crosswalk and not with the pedestrian crosswalk signal."

Counsel for the defendant contends that the complaint must be dismissed as the proof establishes that the defendant was lawfully proceeding on the service road with the green light in his favor and that the sole proximate cause of the accident was the negligent actions of the decedent in crossing the roadway against the red traffic signal and outside of the crosswalk. Counsel states that based upon the defendant's testimony and the evidence submitted, the defendant has demonstrated his freedom from comparative negligence, and as such, he is entitled to summary judgment dismissing the complaint.

In opposition, plaintiff's counsel contends that although the defendant asserts that the decedent was negligent in crossing the street outside a crosswalk and against a red traffic signal, the defendant did not submit sufficient evidence which established his own freedom from negligence. Counsel submits photographs depicting the scene, a copy of the transcript of defendant's deposition testimony, a witness statement to police, and certain portions of the deposition testimony of plaintiff Frank Appello and non-party witness Alice Appello.

In his deposition, taken on June 21, 2011, the decedent's father Frank Appello, testified that his son suffered from cerebral palsy and scoliosis. He was unable to stand or to walk and he utilized a motorized wheelchair. At the time of the accident he was traveling to St. Luke's Catholic Church on Clintonville Street in Whitestone, Queens County. [*4]

In his affidavit dated, March 29, 2012, eyewitness Robert Compone, states that on the date in question he was driving a ten wheel dumptruck on the westbound service road of the Cross Island Parkway. He states: "as I was near the intersection of the service road with Clintonville Street, I saw a person in a wheelchair crossing the service road in the crosswalk from the northwest corner of the intersection to the southwest corner of the intersection...A car in the right lane just missed the wheelchair, and passed it. The car in the center lane passed it too, missing the wheelchair. I saw the third car, a jeep, in the left lane hit the wheelchair with the left front of his car, on the driver's side of his front bumper. The front of his car hit the wheelchair pretty hard-the car rolled over the guy in the wheelchair with his front wheels and rear wheels of his car. The guy in the wheelchair almost made it across the service road. I saw the driver of the wheelchair lying in the street with his face down and bleeding from his head. The driver of the jeep that hit the wheelchair jumped out of his car right away. It looked like he never slowed down. After he ran over the guy he ended up swerving to the left. The wheelchair and the guy in the wheelchair ended up about 25 feet west of the crosswalk...The guy in the wheelchair was definitely in the crosswalk and almost to the other side when he was hit. I actually saw him when he started to cross at the corner where the gas station is and where the cross walk was located."

Plaintiff's counsel contends that the deposition testimony of the defendant as well as the statement from the eyewitness, raises material questions of fact concerning the defendant's own negligence in failing to operate his vehicle to avoid colliding with the plaintiff in violation of VTL 1146(a) which states that every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian (including wheelchairs) upon any roadway and shall give warning. Counsel asserts that as such, the defendant has failed to make a prima facie case in that he has failed to demonstrate his own freedom from negligence as a matter of law.

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

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 [*5](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]).

Here, although the defendant established, prima facie, that the decedent was negligent in crossing the street against a red traffic signal, defendant failed to establish that such negligence was the sole proximate cause of the collision. The proponent of a summary judgment motion also has the burden of establishing freedom from comparative negligence as a matter of law (see Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; also see Gardella v Esposito Foods, Inc., 80 AD3d 660 [2d Dept. 2011]; Kim v Acosta, 72 AD3d 648 [2d Dept 2010]). 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 he should have seen through the proper use of his senses (see Wilson v Rosedom, 82 AD3d 970[2d Dept. 2011]), and further, a driver wuith the right of way has a duty to use reasonable care to avoid a collision (see Matamoro v City of New York, 941 NYS2d 684 [2d Dept. 2012]). Although the decedent was crossing the roadway against the light, the defendant testified that he did not look left or right before accelerating at the intersection and moreover, he stated that he did not see the decedent crossing the street in front of his vehicle. The affidavit of the eyewitness raises question of fact as to whether the decedent was crossing in the crosswalk and why the defendant failed to see the decedent crossing the street. The eyewitness who was in a vehicle behind the defendant's vehicle states that he clearly saw the wheelchair crossing from the curb until he was struck by defendant's vehicle at a point close to the opposite corner. As such, defendant failed to meet his burden of establishing, as a matter of law, that defendant could not have seen the decedent in time to stop or take evasive maneuvers to avoid hitting him (see Bishop v Curry, 83 AD3d 1431 [2d Dept. 2011]). In addition, there are questions of fact as to whether the defendant contributed to the accident by failing to keep a proper lookout and failing to exercise due care in operating his vehicle (see Vehicle and Traffic Law §§ 1146; Topalis v Zwolski, 76 AD3d 524 [2d Dept. 2010][defendant failed to submit evidence sufficient to establish, prima facie, that the decedent's alleged negligence was the sole proximate cause of the accident, that he kept a [*6]proper lookout, and that his alleged negligence, if any, did not contribute to the happening of the accident]).

Thus, viewing the evidence submitted in support of the defendant's motion in the light most favorable to the nonmoving party and as the question of comparative negligence is generally a question for the jury (see Jahangi v Logan Bus Co., Inc., 89 AD3d 1064 [2d Dept. 2011]), this Court finds that 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.

Dated: May 21, 2012

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.