The following papers numbered 1 to 18 were read on this motion by plaintiff, DEMAR RAUL BARAHONA, 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

Plaintiff's Notice of Motion-Affidavits-Exhibits........1 - 7

Defendant Cea's Affirmation in Opposition...............8 - 11

Defendant America Recycle and Defendant Rivera's

Affirmation in Opposition..............................12 - 15

Plaintiff's Affirmation in Reply.......................16 - 18

In this negligence action, the plaintiff, DEMAR RAUL BARAHONA, seeks to recover damages for personal injuries he allegedly sustained as a result of a two-car motor vehicle accident that occurred on November 6, 2012, on 94th Street at the intersection with 59th Avenue, Queens County, New York. Plaintiff contends that he was a passenger in the vehicle operated by defendant Jorge Alberto Cea waiting to make a left turn when the [*2]vehicle was struck by a truck owned by defendant, AMERICA RECYCLE, LLC and operated by defendant Jose Rivera. Plaintiff alleges that as a result of the collision he sustained serious personal injuries of a permanent nature including the need for cervical spine surgery.

The plaintiff commenced this action by filing a summons and complaint on December 19, 2012. Defendants America/Rivera joined issue by serving a verified answer with cross-claims dated April 17, 2013. Plaintiff now moves, prior to examinations before trial, 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, Eric D. Subin, Esq; a copy of the pleadings; and an affidavit from Demar Raul Barahona, dated June 30, 2013 which states as follows:

"On 11/6/2012 I was a passenger in a vehicle being operated by defendant Jorge Alberto Cea that was stopped on 59th Avenue at its intersection with 94th Street in Queens, New York. The vehicle in which I was a passenger was intending to turn left from 59th Avenue onto 94th Street but was stopped while waiting for pedestrians to cross 94th Street. The vehicle in which I was a passenger was stopped for 5 to 10 seconds waiting to make a left turn onto 94th Street. While we were stopped the front of a truck collided with the driver's side rear door of the vehicle in which I was a passenger. I later learned that the truck that collided with the vehicle in which I was a passenger was being driven by defendant Jose Rivera."

Plaintiff's counsel contends that the accident was caused solely by the negligence of defendant Rivera. Counsel contends that the plaintiff's affidavit demonstrates that defendant Jose Rivera entered the intersection when it was unsafe to do so and collided with the Cea vehicle which was stopped waiting to make a left turn. Counsel contends that Rivera either entered the intersection illegally by disobeying a red light or entered the intersection when it was not safe to do so as the plaintiff's vehicle was already stopped in the intersection waiting to make a left turn. Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to liability because the plaintiff, as an innocent passenger, was free from culpable conduct and further defendant Rivera cannot offer a non-negligent explanation for causing the accident. Counsel alleges that Rivera was negligent in failing to keep a reasonable lookout in failing to see should have seen by the proper use of his senses, and failing to use reasonable care to avoid the accident. [*3]Alternatively, counsel argues that one or both drivers in the first accident were responsible for causing the accident and that the plaintiff-passenger was free from culpable conduct.

In opposition to the motion, counsel for Jose Rivera and America By-Products Recyclers, LLC, Tara L. Stago, Esq., states that the plaintiff is not entitled to summary judgment as the evidence demonstrates that there is a question of fact as to how the accident occurred and whether one or both defendants were at fault. Defendant submits an affidavit from driver Jose Rivera, dated July 29, 2013, in which he states that he is employed by American By-Products Recyclers, LLC and was a driving a vehicle in the course of his employment on November 6, 2012. He states that 59th Avenue is a one-way street with two travel lanes. He states that his vehicle was located in the left lane of 59th Avenue and the co-defendants vehicle was located in the adjacent lane to his right. He states that the accident occurred as he approached the intersection and the Cea vehicle suddenly attempted to make a left turn from the right lane of 59th Avenue onto 94th Street striking his vehicle. He states that he does not know why the other vehicle made an improper turn into his lane of travel and what role the passenger, Mr. Barahona may have played in doing so. The police accident report based upon the statements of the drivers at the scene states that Rivera told the officer that Cea made a left turn from the right lane causing him to strike the Cea vehicle. Cea stated that he had his left turn signal on was struck on the side of his vehicle

Counsel for defendant Rivera states that the two drivers have set forth conflicting versions of how the accident occurred resulting in questions of fact to be determined by the jury. Counsel argues that the ability of the respective drivers to see each other and avoid each other prior to the happening of the accident, together with their respective speeds, the points of impact and the pre and post contact actions are questions of fact for the jury. In addition counsel asserts that the motion for summary judgment is premature as depositions have not yet been held.

Counsel for Cea, James F. Stewart, Esq., contends that the plaintiff's evidence demonstrates that defendant Cea is not at fault for causing the subject accident. Counsel alleges that the plaintiff's affidavit demonstrates that Cea was stopped at an intersection for 5 - 10 seconds waiting to make a left turn when Rivera's vehicle struck the rear portion of the Cea vehicle. Defendant also states that the motion is premature as limited discovery has taken place and facts essential and necessary to [*4]oppose claims of liability on the part of defendant are within the exclusive knowledge of the plaintiff and co-defendants.

In reply, the plaintiff states that the uncertified police report is not in admissible form and may not, therefore, be considered on the motion for summary judgment. In addition, plaintiff asserts that notwithstanding the contrary versions of the accident, that any purported issues regarding apportionment of fault between the two drivers cannot serve to defeat plaintiff's motion. Counsel contends that there has been no evidence submitted that the plaintiff/passenger failed to exercise reasonable care for his own safety.

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 proof submitted by the respective parties presents conflicting versions of how the accident occurred. The plaintiff asserts that the Cea vehicle was stopped waiting to make a left turn when it was struck in the rear portion of the vehicle by the Rivera truck which allegedly entered the intersection when it was unsafe to do so. Rivera on the other hand alleges that Cea was in the right lane of 59th Avenue and attempted to make a left turn in front of his vehicle from the right lane. Therefore there is clearly a question of fact as to whether one or both of the defendant's were negligent in the operation of their vehicle Therefore, liability as between the two drivers involved in the 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 himself was at fault in the happening of the accident.

The plaintiff satisfied his prima facie burden of establishing his freedom from comparative negligence and is entitlement to judgment as a matter of law on the issue of his 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]). Although the evidence submitted demonstrates there is a question of fact with respect to the liability for the accident as between the driver of the host [*5]vehicle, Mr. Cea and defendant Mr. Rivera, plaintiff was an innocent passenger who cannot be found at fault under any version of how the accident occurred. In opposition, the defendants have failed to raise a question of fact as to the plaintiff's culpable conduct.

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. 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.

Contrary to the defendants' contention, the plaintiff's motion for summary judgment is not premature. The defendants failed to demonstrate that discovery may lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff or co-defendant (see CPLR 3212 [f]; Martinez v Kreychmar, 84 AD3d 1037 [2d Dept. 2011]).

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]).

Dated: September 30, 2013

Long Island City, NY

_____________________

ROBERT J. MCDONALDJ.S.C.