This is a personal injury action in which Plaintiff, Hernan Duran, age 23, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on September 6, 2010, when the motorcycle he was operating struck [*2]the vehicle operated by defendant Corwin R. Slack. At the time of the accident plaintiff was riding past the parking lot of Budget Rent A Car on 23rd Avenue between 88th and 89th Street in Queens County when Mr. Slack's vehicle emerged from the lot and made a right turn on 23rd Avenue in front of the plaintiff's motorcycle. The plaintiff alleges that although he applied his brakes, Mr. Slack's vehicle cut him off and he was unable to avoid running into the rear of the defendant's vehicle. As a result of the impact, the plaintiff allegedly sustained serious physical injuries including a comminuted midshaft fracture of the right tibia and fibula requiring two surgical procedures.

Plaintiff commenced an action against Mr. Slack and his employer, Axon Solutions, Inc. as well as Budget Rent A car by filing a summons and complaint on March 9, 2011. Issue was joined by service of defendant Slack's, HCL America and Axon Solutions, verified answer dated April 6, 2011. Defendants Avis Budget Group s/h/a Budget Rent a Car System, Inc. and Budget Rent a Car New York City Inc. served its verified answer on April 6, 2011. Plaintiff filed a note of issue and certificate of readiness on June 19, 2012. The case is presently on the calendar of the Trial Scheduling Part on May 2, 2013.

Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability against defendants Corwin R. Slack, HCL and Axon Solutions, Inc., and setting the matter down for a trial on damages. In support of the motion, the plaintiff submits an affidavit from counsel, Joshua D. Kelner, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars and copies of the transcripts of the examinations before trial of plaintiff and defendant Slack.

In his examination before trial taken on June 14, 2012, the plaintiff Hernan Duran, testified that on September 6, 2010 he was operating a Yamaha motorcycle in an eastbound direction on 23rd Avenue. He stated that he had been coming from a barbecue at Flushing Meadow Park. He left the barbecue at about 8:30 p.m. with Mr. Alcatraz and Mr. Cabrera who were each riding their own motorcycles. He was heading to his home accompanied by his two friends. Prior to the time of the accident he and his friends pulled over on the street in front of Vaughn College on 23rd Avenue near the accident location. When they pulled out from the college, Victor was in the left lane, plaintiff was in the right lane and Lewis was in the right lane behind plaintiff. They were proceeding at approximately 20 miles per hour. Two minutes after he pulled away from the college plaintiff passed a Budget Rent A Car facility. The Budget facility took up the entire block on [*3]23rd Avenue between 88th and 89th Street. The facility had two curb cut entrance/exits. Plaintiff testified that two seconds before the accident he observed a red car coming out of the Budget parking lot. The vehicle was moving fast and was two or three car lengths away from his motorcycle when he first saw it turning right from the second curb cut onto the right lane of 23rd Avenue. The sun had gone down and there were no street lights in the area. However, he stated that the street was adequately lit and he had no trouble seeing. From the time he saw the vehicle to the time of impact he stated two or three seconds had elapsed. He stated that the defendant's vehicle, "just came out" in front of him and made the right turn. He tried to press his brakes and to sound his horn. However, the front of his vehicle came into contact with the rear corner of the defendant's vehicle while the defendant's vehicle was still in the process of making its turn. He was thrown from the motorcycle as a result of a hard impact and rendered unconscious. He did not regain consciousness until he was in the hospital. Plaintiff testier that he does not remember anything at the scene from the time of impact until he regained consciousness.

Defendant, Corwin Slack, age 60, testified at an examination before trial on June 14, 2012 that at the time of the accident he was employed as an IT consultant with Axon Solutions, Incorporated. He stated that defendant HCL Technologies is the parent company of Axon Solutions. At the time of the accident he had flown to New York and rented a small red station wagon to drive to a project in Danville, Connecticut. He stated that after he rented the vehicle at Budget Rent A Car he exited the parking lot onto 23rd Avenue. He intended to make a right turn onto the right lane. He stated that before making the turn he came to a complete stop and looked to his left down 23rd Avenue. He observed a motorcycle in the left lane moving fast at a rate of 45 miles per hour. He did not see any vehicles in the right lane. He then turned to look to the right and proceeded to leave the parking lot. He had been in the right lane of 23rd Avenue for two or three seconds and traveled approximately three car lengths when his vehicle was struck in the rear by the motorcycle operated by the plaintiff. He immediately exited his vehicle and saw the plaintiff on the ground. He stated that the plaintiff was conscious and he observed that plaintiff was injured and was talking on a cell phone.

Plaintiff contends that he is entitled to partial summary judgment against defendant Slack on the issue of liability on the ground that the defendant driver failed to yield the right of way to oncoming traffic when he was exiting the parking lot. Counsel claims that the testimony demonstrates that the plaintiff was [*4]lawfully operating his motorcycle in the right lane of 23rd Avenue, at a speed of 20 miles per hour, when the defendant's vehicle suddenly emerged from the driveway into the plaintiff's path, cutting off the plaintiff's motorcycle. Counsel claims that the defendant was negligent in that he violated VTL § 1143 which requires that "the driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed." Counsel asserts that the defendant's unexcused violation of VTL § 1143 constitutes negligence per se and that defendant was negligent in entering the moving lane of traffic when it was unsafe to do so. Counsel also contends that plaintiff, as the motorist with the right of way, was entitled to anticipate that other drivers would obey the traffic laws requiring them to yield to the driver with the right of way (citing Vazquez v New York City Tr. Auth., 94 AD3d 870 [2d Dept. 2012]). Further, counsel asserts that the Second Department has held that "a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision"(Vainer v DiSalvo, 79 AD3d 1023 [2d Dept. 2010]; also see Yelder v Walters 64 AD3d 762 [2d Dept. 2009]).

In opposition to the motion, counsel for Budget Rent A Car System, Henry W. Davoli, Jr., Esq. states that the plaintiff's motorcycle struck the rear of the defendant's vehicle and therefore, the plaintiff's actions were the sole cause of the accident. Counsel also states that the plaintiff testified that the standard method to avoid an accident while on a motorcycle is laying down the bike and going into a skid. Plaintiff testified that he was familiar with this procedure but never attempted to lay down his bike because there was no time. Counsel claims that the accident was solely due to the negligence of the plaintiff in not maintaining a safe distance between the two vehicles, in being inexperienced in the control of his motorcycle and in operating the motorcycle in an unsafe manner. He stated that the plaintiff was negligent in claiming to have seen the defendant's vehicle exiting the parking lot from 3 or 4 car lengths away but in failing to stop the vehicle before striking the defendant's vehicle in the rear.

Counsel for defendant Slack, William A. Fitzgerald, Esq., opposes the motion and submits his own affirmation as well as a copy of the police report, an affidavit from Corwin Slack and copies of pertinent portions of the parties' deposition testimony.

In his affidavit, dated October 30, 2012, Slack states that [*5]on Monday September 6, 2010, he traveled by air to New York City on business for his employer, Axon Solutions, Inc. He was scheduled to attend a meeting in Connecticut the following day. He landed at LaGuardia at 8:30 p.m. and took a shuttle bus to the Budget Rent-A-Car facility located on 23rd Avenue in Queens County. He prepared to exit from the Budget facility at approximately 9:00 p.m. He states that before entering 23rd Avenue, he came to a full stop. He looked to his left and observed a motorcycle in the left lane approximately 150 feet away from him proceeding at a speed of 40-45 miles per hour. He states that as he did not see any vehicles approaching in the right lane he entered the right eastbound lane at a speed of 5 -7 miles per hour and then when he fully entered the right lane he accelerated to 15 miles per hour. He states that he was traveling in the right lane for approximately three seconds when his vehicle was struck in the rear by the motorcycle operated by defendant Hernan Duran. He states that the plaintiff was negligent in changing lanes and striking his vehicle in the rear despite his presence in the right lane. He contends that the plaintiff caused or contributed to the happening of the accident.

Defeat contends that the plaintiff's motion for summary judgment should be denied as the plaintiff's deposition raises factual issues with regard to the plaintiff's comparative negligence. Defendant claims that the plaintiff testified that he saw the defendant's vehicle pull out of the parking lot 2 or 3 seconds prior to the impact and that the defendant's vehicle was 3 or 4 car lengths in front of him when he first saw it. Counsel claims that there are questions of fact regarding the speed of the plaintiff's vehicle, whether the plaintiff failed to keep a proper lookout, failed to see the defendant's vehicle in the right lane and failed to take any evasive action to avoid the collision. Defendant claims that even if the evidence demonstrates that he was negligent in failing to yield the right of way in exiting the parking lot, the plaintiff is not entitled to summary judgment as he failed to submit sufficient evidence to establish his own freedom from comparative negligence. Citing Cox v Nunez, 23 AD3d 427 [2d Dept. 2005], defendant claims that even though the plaintiff had the right of way he still had a duty to use reasonable care to avoid the collision.

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

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 [*6]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]).

It is plaintiff's contention that defendant Slack was negligent as a matter of law in exiting the Budget parking lot and making a right turn onto 23rd Avenue into plaintiff's path without yielding the right of way to eastbound traffic on 23rd Avenue and that said negligence was the sole proximate cause of the accident. Counsel contends that as the plaintiff had the right of way he was entitled to anticipate that any motorist exiting the parking lot would yield to his vehicle. Citing Bonilla v Calbria, 80 AD3d 720 [2d Dept. 2011] counsel asserts that the plaintiff demonstrated his freedom from comparative negligence based upon his testimony that he was traveling on 23rd Avenue with the right of way at a rate of speed of 20 miles per hour and that in the three seconds from the time defendant's vehicle pulled out in front of him he had no time to take evasive maneuvers other than pressing his brake and honking his horn. This Court agrees.

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his deposition testimony as well as the deposition testimony of the defendant both of whom stated that defendant pulled out of the parking lot into the roadway only three seconds prior to the impact. The defendant testified that although he saw a motorcycle in the left lane, he did not see the plaintiff's vehicle in the right lane prior to the collision. Thus, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting proof that the defendant violated Vehicle and Traffic Law § 1143 (failure to yield the right-of-way) and was negligent in pulling out of the parking lot into the path of the plaintiff's vehicle and failing to see the plaintiff's motorcycle approaching in the right lane, which under the circumstances, he should have seen, and making a right turn onto 23rd Avenue when it was hazardous to do so (see Charles v William Hird & Co., Inc., 2013 NY Slip Op 45 2d Dept. 2013]; DeLuca v. Cerda, 60 AD3d 721 [2d Dept. 2009]; Miller v Richardson, 48 AD3d 1298 [4th Dept. 2008][plaintiff met its burden by establishing as a matter of law that the sole proximate cause of the accident was defendant's failure to yield the right of way]; Almonte v. Tobias, 36 AD3d 636 [2d Dept. 2009]; Stiles v County of Dutchess, 278 AD2d 304 [2d Dept. 2000]).

Further, the plaintiff established, prima facie, his entitlement to judgment as a matter of law as the evidence [*7]submitted in support of his motion demonstrated that the subject motor vehicle accident was not proximately caused by any negligence on the part of the plaintiff. His uncontradicted testimony established that he was traveling 20 miles per hour at or below the speed limit, that he had the right of way, that he was entitled to anticipate that Slack would obey the traffic laws which required him to yield and that he tried to brake his vehicle and sound his horn prior to the impact (see Bonilla v Gutierrez, 81 AD3d 581 [2d Dept. 2011]; Albinowski v Hoffman, 56 AD3d 401 [2d Dept. 2008][a driver is not obligated to anticipate that a vehicle parked on the shoulder of a road will suddenly and unexpectedly move into a travel lane].

In opposition to the plaintiff's prima facie showing, the defendant failed to raise any material questions of fact as to whether the plaintiff was comparatively negligent (see Zuckerman v City of New York, 49 NY2d 557[1980]). As the driver with the right-of-way, plaintiff was entitled to anticipate that other driver would obey the traffic laws requiring him to yield to the driver with the right-of-way (see Vehicle and Traffic Law § 1128 [a]; § 1143; see Vazquez v New York City Tr. Auth., 94 AD3d 870 [2d Dept. 2012]; Jacino v Sugerman, 10 AD3d 593 [2d Dept. 2004]; Rak v Kossakowski, 24 AD3d 1191 [4th Dept. 2005]).

Moreover, although the plaintiff also has a duty to keep a proper lookout to avoid a collision, here the defendant failed to raise an issue of fact as to whether plaintiff, who had only seconds in which to react to the situation, was negligent in failing to avoid the collision (see Vazquez v New York City Tr. Auth., supra [a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision]; Vainer v DiSalvo, 79 AD3d 1023 [2d Dept. 2010]; Yelder v Walters, 64 AD3d 762 [2d Dept. 2009]; Jaramillo v Torres, 60 AD3d 734 [2d Dept. 734]; Batts v Page, 51 AD3d 833[2d Dept. 2008]; Lupowitz v Fogarty, 295 AD2d 576 [2d Dept. 2002]). The testimony of both parties was to the effect that after the defendant pulled out onto 23rd Avenue, the impact took place three seconds later which would not leave the plaintiff sufficient time to take evasive action.

The contention of defendant, raised in opposition to the motion, that the deposition transcripts are not in evidentiary form is without merit. Although the depositions were unsigned, the transcripts annexed to the motion and reply papers were certified by the court reporter and the defendant did not raise any challenges to their accuracy. Thus, the transcripts qualify as admissible evidence for purposes of the motion for summary [*8]judgment (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Zalot v Zieba, 81 AD3d 935 [2d Dept. 2011]). In addition, the transcript of the plaintiff's deposition is admissible under CPLR 3116(a) since that transcript was submitted by the party deponent himself it was adopted as accurate by the plaintiff (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2d Dept. 2008]).

Thus, as the evidence in the record demonstrates that there are no triable issues of fact as to whether plaintiff may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff, HERNAN DURAN, shall have partial summary judgment on the issue of liability against defendants, HCL AMERICA, INC., HCL TECHNOLOGIES, LTD., AXON SOLUTIONS, INC. and CORWIN R. SLACK, and the Clerk of Court is authorized to enter judgment accordingly.

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.