The following papers numbered 1 to 22 were read on this motion by the plaintiffs for an order pursuant to CPLR 3212 granting partial summary on the issues of liability and serious injury:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits................1 - 10Affirmation in Opposition-Affidavits-Exhibits......11 - 16

Reply Affirmation-Exhibits.........................17 - 22

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This is a personal injury action in which plaintiff, Jimmy Garcia ("plaintiff"), seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on January 11, 2012, at approximately 8:50 a.m., at or near the intersection of 21st Street and 30th Road, Queens County, New [*2]York. Elena Garcia, plaintiff's wife, seeks to recover damages for loss of services. At the time of the accident, plaintiff, age 69, was a pedestrian who was struck by the motor vehicle owned by defendant, Lenox Hill Florist III, Inc., and operated by defendant George Seretis ("defendant"). Plaintiff commenced this action by filing a summons and verified complaint on October 2, 2012. Issue was joined by service of defendants' verified answer on October 22, 2012. In their answer, the defendants admit that on the date of the accident, Lenox Hill Florist III, Inc. was the registered owner of the Chevrolet cargo van involved in the accident and that defendant, George Seretis, was an employee of Lenox Hill Florist III, Inc. and was operating the cargo van in the scope of his employment.

The plaintiff now moves, prior to depositions and prior to IME examinations, for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and on the issue of serious injury and for an order setting the matter down for a trial on damages only. In support of the motion, the plaintiff submits an affidavit from counsel, Skip Alan LeBlang, Esq; an affidavit from one Blanca Nava, an independent eyewitness; the transcript of the examination before trial of responding Police Officer Roddy Tolentino; Officer Tolentino's police accident report; photographs of the intersection; photographs of the damage to the defendants' vehicle; photographs depicting the defendant's injuries; transcripts and CD recordings of two 911 calls and a FDNY call made at the scene; an affidavit from the plaintiff, Jimmy Garcia; motor vehicle accident report filed by the defendant; certified hospital record of Elmhurst Hospital Medical Center; forensic medical affirmation of Dr. Gerard Catanese with respect to the mechanism of Mr. Garcia's injury; affidavit of Veronica Henry, a laboratory supervisor at Elmhurst Hospital Medical Center; and the affidavit of Sal Palilla, a 911 caller who was at the scene of the accident.

In his affidavit, dated April 16, 2013, the plaintiff states that on January 11, 2012, just before 9:00 a.m., he was seriously injured when he was struck by a commercial cargo van while crossing 21st Street on the north side of the intersection going from the west side of 21st Street to the east side of 21st Street. He states that he was walking in the unmarked crosswalk and he had crossed 2 1/2 of the 3 southbound lanes and was approaching the center of 21st Street when he was struck on his left side by the defendant's van. There is no traffic signal at the intersection. However, as 30th Road is one way, going from east to west, the intersection is controlled by stop signs on the east side of 30th Road. Plaintiff states that when he first got to the northwest corner he had a clear view of 21st Street in both [*3]directions. He looked in both directions before entering the pedestrian crossing area of 21st Street. After observing no vehicles approaching from either direction he began walking easterly across 21st Street in the unmarked crosswalk area. When he was in the 3rd of the three southbound lanes, the lane closest to the center, he briefly paused to look to the right to be sure traffic was still clear in the northbound lanes. As he proceeded he was struck by the defendant's truck that had made a left turn out of an underground garage on the east side of 21st Street, crossed the northbound lanes, and proceeded to make a left turn into the southbound lanes. The van came from plaintiff's left and struck him on the left side. He states he did not see the van prior to being struck. Plaintiff stated there was no warning before the collision, no sound of screeching brakes and no sound of a horn. He stated that he did not observe the van in the roadway when he first began crossing the street.

An independent eyewitness, Blanca Nava, submitted an affidavit dated April 29, 2013. She states that the collision occurred at the intersection of 21st Street and 30th Road in Astoria, Queens, in the crossing area on the north side of the intersection which is used by pedestrians to cross 21st Street. She states that 21st Street is a wide north-south, two-way roadway, with two travel lanes in each direction and one parking lane on each side of 21st Street. She states that she saw the defendants' van emerge from an underground parking garage on the east side of 21st Street, pause momentarily on the sidewalk in front of her and then rapidly accelerate into a left turn onto 21st Street. She testified that she observed the van move quickly across the northbound travel lanes of 21st Street, pick up speed, and make a hard left onto the southbound lane of 21st Street which was closest to the center. She states that the van made an unusually fast left hand turn proceeding at a speed of at least 20 miles per hour. She states that it took only a few seconds for the van to reach the point where it struck the pedestrian. When she saw the pedestrian he was in the crossing area of 21st Street in the southbound lane closest to the center of the roadway. She stated that the pedestrian was crossing from west to east and the front of the van struck him on his left side. She did not observe the van sound its horn, slow down, swerve, or take any evasive action to avoid the collision. She states that there was no time for the pedestrian to do anything to avoid the accident. When the police officer arrived, Ms. Nava told the officer that she saw the commercial van strike the pedestrian with the front of the vehicle as the pedestrian was in the crossing area of the intersection approaching the center of the roadway. She surmised that the van driver did not see the pedestrian even though the pedestrian was in plain view. [*4]

Police Officer Roddy Tolentino was deposed on November 21, 2012. On January 11, 2012, she responded to the scene of a motor vehicle/pedestrian collision at the intersection of 21st Street and 30th Road in Queens County. She stated that she obtained information from the defendant-driver, George Seretis, and eyewitness Blanca Nava. She testified that she learned that the defendant's vehicle was traveling southbound and that he collided with the plaintiff in the lane closest to the center of the road. Officer Tolentino's motor vehicle accident report indicated that the intersection was not controlled by a traffic signal and that the pedestrian was crossing in the unmarked crosswalk at the intersection. She stated that she believed the pedestrian was crossing from east to west based upon the way his body was positioned. She did not know which curb he stepped off of to get to the position where he was struck. She stated that there was no evidence provided to her at the scene from the defendant or the eyewitness that he pedestrian came out from between parked cars. Based upon the damage to the defendant's van she stated that the defendant struck the pedestrian with the left front bumper and front grill. She did not state in her report that there were any actions on the part of the plaintiff that contributed to the accident. She stated that in her opinion the accident was the result of the defendant driver failing to yield the right of way to the pedestrian crossing the road.

Plaintiff also submits an audio recording and transcript of a 911 call made by the defendant immediately following the accident in which he states to the 911 operator that he had just struck a pedestrian with his vehicle. He states to the operator: "he was walking in the street, he was crossing the street and I was making the turn and I didn't see him." The defendant's call was transferred to an EMS dispatcher and again he stated to the dispatcher: "I hit a gentleman crossing the street. I didn't see him and he's on 30th, 3011 21st Street, Astoria, Queens." He told the dispatcher that he struck the pedestrian on the side.

The plaintiff also submits a motor vehicle accident report filed by the defendant in which defendant states that the pedestrian was crossing from east to west and jumped across the double lane and was struck in the middle of the street. He states that he learned from a witness that the pedestrian was crossing from between parked cars on the east side of 21st Avenue. The diagram he submitted with the report shows that the plaintiff crossed from between two parked cars on the east side of 21st Street which were north of the intersection and that plaintiff was not in the unmarked crosswalk when he was struck.

In his bill of particulars, the plaintiff states that as a [*5]result of the accident he sustained, inter alia, traumatic injuries to his left chest, left flank, left buttocks and left arm including fractures of 8 ribs; head trauma involving multiple calvarial and facial bone fractures as well as multiple skull fractures and intracranial hemorrhages requiring emergency neurosurgery and installation of fixation hardware.

The certified medical records from the emergency room at Elmhurst Hospital Medical Center indicate that the plaintiff sustained multiple left rib fractures as well as multiple skull fractures and bruises to his left arm and left side of the abdomen. The plaintiff underwent an emergency craniotomy due to intra-cranial bleeding.

In support of the motion, the plaintiff also submits an affidavit from Dr. Gerard Catanese, a Nassau County Medical Examiner and specialist in the area of forensic pathology. Based upon his review of the plaintiff's injuries, Dr. Catanese concludes that plaintiff was struck by massive direct force applied to his left side, with the point of impact extending from his left buttocks to his rib cage sufficient to cause displaced fractures of eight left sided ribs and a deep left sided hemorrhage in the buttocks and torso and severe head injuries. He also concludes that at the time of the impact the plaintiff was struck by the front of the van which he believes was traveling at 20 miles per hour. He states that the defendant's version of the accident, to wit, that the plaintiff crossed from the opposite side from east to west, could not have occurred given that the plaintiff had no right sided injuries.

Plaintiff also submits an affidavit from eyewitness, Sal Palilla, who states that he was present at the time of the accident. He states that he was in the area at the time of the collision and that his attention was drawn to the scene by the sound of the collision. He states that he did not hear a horn, squeal of brakes or screeching of tires. He saw the defendant's vehicle positioned at the intersection of 30th Road and 21st Street in the lane closest to the center of the roadway. It was positioned at the intersection of 30th Road and 21st Street and well into the crossing area on the north side of that intersection. He states that he saw the pedestrian down on the roadway at the same location in that southbound lane. He immediately called 911.

In his affirmation, plaintiffs' counsel contends that the defendant driver was negligent and breached his duty to the pedestrian by failing to see what was there to be seen in front of him, failing to exercise due care to avoid striking a [*6]pedestrian and failing to yield the right of way to a pedestrian who was visible in the middle of the street directly in the lane in front of him. In addition, plaintiff contends that the defendant failed to yield the right of way to a pedestrian who was crossing in an unmarked crosswalk in violation of VTL § 1146 (The defendant has a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), and VTL § 1151(a)(when traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk) (citing Barbieri v Vokoun, 72 AD3d 853 [2d Dept. 2010]).

In addition, the plaintiff asserts that the proof demonstrates that there is no issue of comparative negligence on the part of the plaintiff. Counsel contends that the evidence, including the statement of eyewitness Blanca Nava demonstrates that the defendant driver exited the underground garage and made a quick left turn across the northbound lanes at a fast rate of speed trying to get ahead of oncoming traffic on the south side of 21st Street. He contends that the driver admitted in his 911 call, as well as in his statement to Police Officer Tolentino, that he did not see the pedestrian until he was right in front of his vehicle and as such failed to take any measures to avoid the collision. The plaintiff also contends that the report of the investigating police officer, based upon her interviews with witnesses and with the defendant driver, concluded that the plaintiff was walking across the street in the unmarked crosswalk and the van struck him in violation of the pedestrian's right of way. The plaintiff also claims that the forensic evidence analyzed by Dr. Catanese showing injuries to the left side of plaintiff's body, demonstrates, prima facie, that the plaintiff was walking across the street from west to east and was struck on his left side. Counsel avers that the forensic evidence corroborates the description of the accident as provided by the plaintiff in his affidavit and as provided by eyewitness Nava. In addition, counsel contends that the sole contributing cause of the accident as testified to by Officer Tolentino was the fact the driver violated the pedestrian's right of way as he crossed in the crosswalk and the defendant failed to offer a non-negligent explanation for his actions (citing Abramov v Miral Corp., 24 AD3d 397[2d Dept. 2005]).

With respect to the explanation offered by the defendant in his written DMV accident report to the effect that the pedestrian came out from between two parked cars on the east side of the street, was not in the crosswalk, and jumped across the double [*7]line into the driver's side of the truck, counsel contends that this version is contradicted by the driver's initial explanation that he did not see the pedestrian until he was right in front of his vehicle, by the eyewitness accounts and by the forensic expert Dr. Catanese. Dr. Catanese stated in this regard that if the plaintiff had walked or jumped into the side of the van he would have displayed a degree of frontal injuries. Counsel states that the defendant's version is merely an attempt to raise a feigned issue of fact in order to defeat the motion for summary judgment (citing Ricci v Lo, 95 AD3d 859[2d Dept 2012]; Abramov v Miral Corp., supra, Rosenblatt v Venizelos, 49 AD3d 519 [2d Dept. 2008]; Cuevas v Chavez, 2011 NY Slip Op 50278 affd 94 AD3d 803 [2d Dept. 2010]).

Lastly, plaintiff's counsel contends that the evidence shows that the plaintiff looked both ways and saw there was no approaching traffic before he crossed the street in the crosswalk. Further, counsel contends that as a pedestrian with the right of way, plaintiff was entitled as a matter of law to anticipate that the other vehicles would obey the traffic laws that require them to yield (citing Martinez v Kreychmar, 84 AD3d 1037 [2d Dept. 2011]; Benedikt v Certified Lumbar Corp, 60 AD3d 798 [2d Dept 2009]; Hoey v City of New York, 28 AD3d 717 [2d Dept. 2006]; Khan v Isakov, 2011 NY Slip Op 51355 [Sup Crt. Qns Co. 2011]).

With respect to the branch of the motion for summary judgment on the issue of serious injury, plaintiff's counsel asserts that the undisputed and uncontroverted evidence submitted, including the certified records of the emergency room at Elmhurst Hospital Medical Center demonstrate, prima facie, that as a result of the accident the plaintiff sustained numerous injuries including multiple traumatically induced fractures of the ribs, maxilo-facial fractures, and skull fractures. Counsel contends that plaintiff is entitled to summary judgment on the issue of serious injury as the presence of a causally related fracture cannot be fairly disputed.

In opposition, the defendant driver, George Seretis submits an affidavit dated June 17, 2013. In his affidavit he states that on the date in question he was operating a cargo van for Lenox Hill Florist. He pulled out of a driveway situated on the east side of 21st Street near the intersection with 30th Road. He states 21st Street runs north and south and that before pulling out he looked both north and south and observed it was safe for him to proceed with making a left-hand turn out of the driveway to head south on 21st Street. He states that he made the left turn into the left southbound lane. He states that there were two [*8]vehicles parked on the east side of 21st Street in the northbound direction which were to his left at he pulled out. He states,

"I traveled about one and one-half car lengths before the vehicle I was in came into contact with plaintiff, a pedestrian. I did not see the plaintiff in the street until the second before the impact and was unable to avoid the collision. At the time of the impact, the plaintiff was in front of the vehicle I was traveling in, towards the driver's side of the vehicle. The plaintiff was facing west on 21st Street. At the moment of impact, my car was adjacent to the two parked cars on the east side of 21st Street, approximately one car length away from the pedestrian ramp at the intersection of 21st Street and 30th Road. My car had not yet reached the intersection at the moment of impact."

He states that the point of impact between his vehicle and the plaintiff was the driver's side of the vehicle he was operating. The vehicle came to rest approximately one half of a car length before the crossing area and before the intersection with 30th Road. He states that following the accident, he was informed by a witness that the plaintiff came out from the sidewalk on the east side of the street between two parked cars."

Defendant also submits a transcript of a recorded statement purportedly made Ms. Blanca Nava to a representative of defendants' insurance carrier on January 20, 2012. The transcript is not identified, signed, certified or authenticated by either party involved in the statement. In it Ms Blanca states that the defendant crossed in the middle of the street. She stated that he came between two parked cars and then crossed the street.

Defendants' counsel submits that plaintiff's motion for summary judgment is premature on the ground that the parties have not been deposed, the defendant has not received the plaintiff's medical records and has not had an IME. Counsel contends that depositions are necessary to determine whether the plaintiff caused or contributed to the accident.

In addition, counsel claims that Dr. Catanese's findings that the defendant was struck on the left side is speculative as his injuries to the left side could have been incurred from being struck on the right side and hitting the pavement on the left side. Counsel also states that Ms. Nava's authenticated statement submitted with the plaintiff's motion is contradicted by her unauthenticated statement made to a representative from the insurance carrier in which she purportedly stated that the plaintiff came out from between two parked cars and was not in [*9]the crosswalk.

Counsel claims that based upon Ms. Nava's statement, the plaintiff saw the van and attempted to run across the street in front of the van. Further, the defendants claim that the driver's affidavit raises a question of fact in that he stated that he was told that the plaintiff came out from between two parked cars and that he was not in the marked crosswalk or intersection when the accident occurred. Defendants' counsel states that plaintiff's proof does not establish that the defendant was negligent and that Police Officer Tolentino's accident report is merely based upon statement from persons at the scene and not her own observations. Citing Lopez v Belter, 59 AD3d 683 [2d Dept. 2009], counsel states that denial of summary judgment is warranted where there is conflicting evidence as to whether the plaintiff was in the crosswalk at the time of the collision. In addition, defendants' counsel states that the plaintiff has failed to establish his freedom from comparative negligence as he has failed to establish that he was in the unmarked crosswalk at the time of the collision. Further, he asserts that the defendant's affidavit is sufficient to raise a question of fact as to whether the plaintiff exercised due care in crossing the street at a point other than an intersection or a crosswalk (see Billingy v Blagrove, 84 AD3d 848 [2d Dept. 2011], and whether the plaintiff was negligent under VTL § 1152(a) for failing to yield the right of way to vehicles in the roadway (citing Hopkins v Haber, 39 AD3d 471 [2d Dept. 2007][a triable issue of fact exists as to whether the plaintiffs' decedent was crossing the street within the crosswalk and whether she contributed to the 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]).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence showing that the defendant-driver was negligent in that he violated Vehicle and Traffic Law § § 1146 and 1151(a). The plaintiff testified that he entered the unmarked crosswalk after exercising reasonable care and was walking across 21st Street within the crosswalk, when Mr. Seretis made a left turn into the southbound lanes and failed to yield the right of way to the plaintiff who was crossing in the crosswalk in an [*10]uncontrolled intersection (see Moreira v M.K. Travel & Transp., Inc., 106 AD3d 965 [2d Dept. 2013]; Hamilton v Kong, 93 AD3d 821 [2d Dept. 2012]; Kusz v New York City Tr. Auth., 88 AD3d 768 [2d Dept. 2011]; Rosenblatt v Venizelos, 49 AD3d 519 [2d Dept. 2008]). The defendant had a statutory duty to use due care to avoid colliding with a pedestrian on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he should have seen through the proper use of his senses (see Domanova v State of New York, 41 AD3d 633 [2007]; Larsen v Spano, 35 AD3d 820 [2d Dept. 2006]).

According to the plaintiff's testimony he did not see the defendant's vehicle coming from his left and could not have avoided the accident as the defendant's vehicle struck him in the middle of the intersection without providing any warning whatsoever(see Qamar v Kanarek, 82 AD3d 860 [2d Dept. 2011][plaintiff made prima facie case in showing that he exercised due care in crossing the street and that he was struck by the defendant driver, suddenly and without warning, when he was more than halfway across the street, having "almost reached" the curb that he was crossing to]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept. 2009]; Benedikt v Certified Lumber Corporation, 60 AD3d 798 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Sulaiman v Thomas, 54 AD3d 751 [2d Dept. 2008]; Voskin v Lemel, 52 AD3d 503 [2d Dept. 2008]).

Further, this Court finds that the plaintiff's evidence, including the authenticated statement of eyewitness, Blanca Navas, the report of plaintiff's forensic expert, Dr. Catanese, the admission of the defendant to the 911 operators that he did not see the plaintiff before he struck him with his vehicle and the motor vehicle report and deposition testimony of Police Office Tolentino to the effect that the plaintiff was crossing from west to east in the crosswalk when he was struck, supports the plaintiff's version of the accident and is sufficient to demonstrate, prima facie, defendant's violation of Vehicle and Traffic Law §§ 1146 and 1151(a) as well as the plaintiff's freedom from comparative negligence.

In addition, the affidavit of the defendant driver submitted in opposition to the motion merely raised feigned issues of fact which are insufficient to defeat the plaintiff's motion for summary judgment (see Benedikt v Certified Lumber Corporation, 60 AD3d 798 [2d Dept. 2009]. The defendant's affidavit, in which Mr. Seretis stated that the accident occurred 40 feet east of the intersection, that the defendant was walking in a westbound direction and that he was informed by an unnamed witness that the plaintiff came out from the sidewalk on the east side of the [*11]street between two parked cars was a belated attempt by Mr. Seretis to avoid the consequences of his earlier admission by raising a feigned issue which was insufficient to defeat the motion (see Abramov v Miral Corp., 24 AD3d 397[2d Dept. 2005]).

Here, there is insufficient evidentiary basis to support the defendant's version of the accident that the 69 year-old plaintiff, ran or jumped out from between two parked cars without warning such that the defendant could not have avoided the collision in the exercise of due care (see Moreira v M.K. Travel & Transp., Inc., 106 AD3d 965 [2d Dept. 2013]). The defendant's version of the accident was refuted by the forensic evidence supplied by the plaintiff and was contrary to the admissible eyewitness accounts and the finding of the police investigator (see Dorazio v Delbene, 37 AD3d 645 [2d Dept. 2007]).Further, the alleged contradictory recorded telephone statement purportedly made by Ms. Nava is not admissible for purposes of the motion as it is not authenticated, identified by anyone with personal knowledge, unsworn, and unacknowledged. Therefore, this Court finds that the defendants failed to meet their burden of demonstrating a material issue of fact which would preclude summary judgment.

Moreover, the defendants failed to establish that the plaintiffs' motion for summary judgment on the issue of liability was premature, because they did not demonstrate that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs (see Martinez v Kreychmar, 84 AD3d 1037 [2d Dept. 2011]; Davis v Rochdale Vil., Inc., 83 AD3d 991 [2d Dept. 2011]; Deleg v Vinci, 82 AD3d 1146 [2d Dept. 2011]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759 [2d Dept. 2006]).

However, although the plaintiff made a prima facie case demonstrating that he sustained serious injuries under the Insurance Law based upon the certified hospital records stating that the plaintiff sustained several fractures, the branch of the motion for summary judgment on the issue of serious injury is denied without prejudice to renew as premature as the defendant has not had the opportunity to have an IME of the plaintiff or to submit the plaintiff's medical records to defendant's medical experts. [*12]

Accordingly, based on the foregoing, it is hereby

ORDERED, that the branch of the plaintiff's motion for summary judgment on the issue of serious injury pursuant to Insurance Law § § 5102 and 5104 is denied without prejudice to renew, and it is further,

ORDERED, that the branch of the plaintiff's motion for partial summary judgment on the issue of liability against the defendants is granted and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that upon completion of discovery, filing a note of issue, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on damages.

Dated: September 20, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.