The following papers numbered 1 to 11 were read on this motion by plaintiff, MARIA VALERIO, for an order pursuant to CPLR 3212(b) granting partial summary judgment in favor of plaintiff and against the defendants on the issue of liability and setting the matter down for a trial on damages:

PapersNumbered

Notice of Motion-Affidavits-Exhibits....................1 - 7

Defendants' Salley/Saddler Affirmation in Opposition....8 - 11

In this negligence action, the plaintiff, MARIA VALERIO, seeks to recover damages for personal injuries she allegedly sustained as a result of a multi-vehicle accident that occurred on May 30, 2010, on Fulton Avenue and Washington Street, Hempstead, Nassau County, New York. Plaintiff contends that she was stopped in her vehicle waiting for a red light at the intersection of Fulton Avenue and Washington Street when her vehicle was struck by the vehicle owned by defendant, Erica Salley and operated by defendant, David Saddler. The [*2]Salley/Saddler vehicle was propelled into plaintiff's vehicle having just been struck by a third vehicle owned by defendant Patricia Johnson and operated by defendant C.C. Johnson.

The plaintiff commenced this action by filing a summons and complaint on September 2, 2011. Defendants Salley/Saddler joined issue by serving a verified answer with cross-claims dated October 11, 2011. The Johnson defendants joined issue by serving a verified answer with cross-claims on October 13, 2011. Plaintiff filed a note of issue on November 7, 2012. This matter is presently on the calendar of the Trial Scheduling Part on September 12, 2013. Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting this matter down for a trial on damages.

In support of the motion, the plaintiff submits an affirmation from counsel, Kevin T. Grennan, Esq; a copy of the pleadings; plaintiff's first amended verified bill of particulars; copies of the transcripts of the examinations before trial of the plaintiff, defendant-driver David Saddler and defendant-driver Christopher Johnson, and a copy of the police accident report (MV-104).

At his examination before trial which took place on December 10, 2012, David W. Saddler, age 44, testified that on May 30, 2010 he was involved in a motor vehicle accident that occurred on Washington Street and Fulton Avenue in Hempstead, Nassau County. He was proceeding southbound on Washington. When he arrived at the intersection of Fulton and Washington, he stopped at the traffic signal which was red in his direction. After waiting at the red signal for approximately one minute, the light turned green and he proceeded into the intersection. As he reached the middle of the intersection his car was struck by a motor vehicle operated by defendant Christopher Johnson. He testified that he believed that the traffic light was red against the Johnson vehicle and that Johnson proceeded into the intersection against the red light. As a result if the collision he lost control of his vehicle which was propelled into the plaintiff's vehicle that was stopped at the red light on Fulton. His vehicle then struck a pole on a corner of Fulton.

Christopher Johnson, age 34, testified at an examination before trial on February 7, 2013. He stated that on the date of the accident he was operating a Ford Explorer and was proceeding westbound on Fulton Avenue. He stated that when he entered the intersection the traffic signal was green in his direction. As he [*3]entered the intersection he collided with the co-defendant's Chrysler. He stated that he saw the Chrysler heading southbound on Washington only seconds before the impact. He applied his brakes but his car struck the Chrysler. After the impact he observed the Chrysler rolling and striking the plaintiff's vehicle and then hit a pole. The plaintiff was operating a white Lexus RX. He observed that the white Lexus was stopped at a traffic signal in the eastbound lane on Fulton when it was struck by David Saddler's vehicle.

In her bill of particulars plaintiff states that as a result of the accident she sustained, inter alia, herniated discs at C4-5, C5-6, T1-2, L5-S1; disc bulges at C6-7 and L1-2 through L4-5, as well as labral and supraspinatus tears of the right shoulder.

The police accident report, which is based upon statements made by the respective drivers, states with regard to the accident description:

"MV No.1 (Johnson), traveling W/B Fulton Ave, struck MV #2(Saddler) traveling S/B on Washington St. MV #2(Saddler), then struck MV #3 (plaintiff) stopped at red traffic signal light on E/B Fulton Ave before striking the curb and then street lamp pole."

Plaintiff, age 37, testified at an examination before trial on December 10, 2012. She stated that on the date of the accident she was the operator of a Lexus SUV, RX300. She stated that she was operating her vehicle on Fulton Avenue and was intending to turn right at the intersection onto Washington Street. She was stopped at a red light. She stated that she did not see the accident involving the defendants prior to feeling a heavy impact to the front left portion of vehicle but she stated that the accident involving the defendants vehicle happened first. She stated that while she was stopped at the red light on Fulton she believed that the light for the cars on Washington Street was green because while stopped at the red light she saw the traffic moving in both directions on Washington.

Plaintiff's counsel contends that the accident was caused solely by the negligence of one or both of the defendants who were involved in the collision in the intersection which caused Saddler's vehicle to be propelled into the plaintiff's vehicle. Counsel contends that neither defendant disputed the plaintiff's testimony that she was stopped at a red light when her vehicle was impacted by he Saddler vehicle. Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to [*4]liability because one or both drivers in the first accident were responsible for causing the second accident with the plaintiff's vehicle and that the plaintiff was free from culpable conduct.

In opposition to the motion, counsel for Salley and David Saddler, states that the plaintiff has failed to meet her burden of proof as against Saddler because he asserts that the proof shows that Johnson ran a red light ands struck the Saddler vehicle causing that vehicle to strike the plaintiff's vehicle.

The Johnson defendants have not opposed the motion.

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, plaintiff testified that her vehicle was lawfully stopped at a red traffic signal when it was suddenly struck by the Saddler vehicle which had been propelled into her as a result of the accident in the intersection between the Saddler and Johnson vehicles. The liability as between the two drivers involved in the first accident which occurred in an intersection controlled by a traffic signal has yet to be determined. Therefore, the instant motion is in effect only for summary judgment on the issue of whether plaintiff herself was at fault in the happening of the accident.

The plaintiff satisfied her prima facie burden of establishing her freedom from comparative negligence and her entitlement to judgment as a matter of law on the issue of her own liability (see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d 1154 [2d Dept. 2007]; Levine v Taylor, 268 AD2d 566 [2000]).

The circumstances of this accident are similar to the situation in which an innocent passenger moves for partial summary judgment on liability despite the liability of the two drivers not having been determined. In those circumstances the courts have held that the right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212 [g]; Anzel v Pistorino, 105 AD3d 784[2d Dept. [*5]2013]; Medina v Rodriguez, 92 AD3d 850 [2d Dept. 2012]; Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [1st Dept. 2001]; Johnson v Phillips, 261 AD2d 269 [1st Dept. 1999]). Any arguments regarding the comparative negligence on the part of the defendants are factual issues for the trial court to determine and therefore, liability as between the defendants shall be determined at trial.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that the plaintiff's motion is granted, only to the extent of finding no culpable conduct or comparative negligence on the part of plaintiff on the issue of liability (see Brabham v City of New York, 105 AD3d 881 [2d Dept. 2013]; Mello v Narco Cab Corp., 105 AD3d 634 [2d Dept. 2013]).

This matter remains on the calendar for trial on September 12, 2013.

Dated: July 30, 2013

Long Island City, NY

_____________________

ROBERT J. MCDONALDJ.S.C.