The following papers numbered 1 to 13 were read on this motion by the plaintiff for an order pursuant to CPLR 3212 granting partial summary on the issue of liability and setting the matter down for a trial on damages only:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits................1 - 6Affirmation in Opposition-Affidavits-Exhibits.......7 - 9

Reply Affirmation-Exhibits.........................10 - 13

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This is a personal injury action in which plaintiff, Elizabeth Bonet ("plaintiff"), seeks to recover damages for injuries she sustained as a result of a motor vehicle accident that occurred on December 17, 2012, at approximately 9:45 p.m., at the intersection of Austin Street and 71st Avenue, Queens County, New York. At the time of the accident, plaintiff, age 28, was a pedestrian who was struck by the motor vehicle owned and operated by defendant, Sara J. Gostl ("defendant"). The plaintiff was struck while crossing 71st Avenue while the defendant was [*2]making a right hand turn from Austin Street onto 71st Avenue.

Plaintiff commenced this action by filing a summons and verified complaint on January 31, 2013. Issue was joined by service of defendant's verified answer dated April 19, 2013.

The plaintiff now moves, following examinations before trial, for an order pursuant to CPLR 3212(b), granting partial summary judgment in her favor on the issue of liability and for an order setting the matter down for a trial on damages only. In support of the motion, the plaintiff submits an affirmation from counsel, Christopher Holbrook, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the police accident report; and copies of the transcripts of the examinations before trial of the plaintiff and the defendant.

In her examination before trial, taken on July 29, 2013, the plaintiff, Elizabeth Bonet, testified that she is employed as an office assistant at LaGuardia Community College. She testified that on the date of the accident, Monday, December 17, 2012, at approximately 9:30 p.m., she was walking on Austin Street crossing 71st Avenue when she was struck by the vehicle operated by the defendant. She stated that she was crossing in a marked crosswalk with the "Walk" sign in her favor. The defendant's vehicle was proceeding on Austin Street and made a right turn onto 71st Avenue while the plaintiff was crossing 71st Avenue. The intersection is controlled by an overhead traffic signal as well as by "Walk/Don't Walk" signs for pedestrians. Ms. Bonet testified that when she reached the intersection, she stopped and waited for a steady walk sign. When the walk signal came on, she looked for approaching vehicles and not seeing any, she walked across the intersection in the marked crosswalk. As she was crossing she looked to her left and saw a vehicle inching up to make a right turn. The vehicle did not stop to allow the pedestrians to cross, rather, it sped up and struck her on her upper left leg and left hip. She stated that she was less than halfway across the street when the impact occurred. She stated that upon impact she went up on the hood of the vehicle and then slid off the front of the vehicle. The defendant stopped and exited her vehicle and called 911. The plaintiff stated that the defendant asked if she was alright and stated, "I panicked, and I meant to hit the brake." The plaintiff stated that she believed the defendant accelerated instead of hitting the brake. The plaintiff left the scene by ambulance and was transported to the emergency room at Forest Hills Hospital. She later learned that she sustained a torn meniscus of the left knee which required arthroscopic surgery.

The defendant, Sara Gostl, age 66, testified at an [*3]examination before trial on July 30, 2013. She stated that on the day of the accident she was traveling eastbound in a 2007 Subaru Forester from Yellowstone Boulevard on Austin Street towards 71st Avenue. She intended to make a right turn onto 71st Avenue. As she approached the intersection she stopped at a red traffic signal. She testified that when the light turned green she proceeded slowly into the intersection as she did not see any pedestrians at that time. She believed that as the light was green in her favor the pedestrian would also have a walk signal in her favor. She agreed that under those circumstances the pedestrian would have the right of way. She stated that as she was making the turn she observed the plaintiff, "but she was not in the crosswalk." She stated that she went to hit the brake but her foot hit the floor in between the two pedals. She stated that she intended to hit the brake but accidentally missed the brake pedal. She stated that by the time she hit the brake it was too late. The defendant testified that the plaintiff was not in the crosswalk when the impact took place but rather she was "at the oncoming traffic lane, there was a car at the stop light, she was alongside it." Before the plaintiff was taken away in the ambulance Ms. Gostl told the plaintiff she was sorry.

The description of the accident prepared by the police officer called to the scene states: "at t/p/o driver 1(Gostl) states while making turn she did not see the pedestrian walking. Pedestrian states she had the right of way and driver struck her." The drawing of the accident prepared by the Officer depicts the plaintiff being struck in the crosswalk by the defendant's vehicle while the defendant was making a right turn onto 71st Avenue.

In his affirmation, plaintiff's counsel, Mr. Holbrook, contends that the defendant driver was negligent and breached her duty to the pedestrian by failing to see what was there to be seen in front of her, failing to exercise due care to avoid striking a pedestrian and failing to yield the right of way to a pedestrian who was visible in the street directly front of her. In addition, plaintiff contends that the defendant conceded that plaintiff had a walk sign in her favor and had the right of way. Further, plaintiff asserts that the defendant was negligent as she conceded that her vehicle struck the plaintiff because when trying to stop the vehicle upon seeing the plaintiff, her foot missed the brake pedal and instead hit the floorboard. As a result, the defendant could not stop her vehicle in time to avoid striking the plaintiff. Counsel states that the defendant violated VTL 111(a)(3) which provides that pedestrians facing a steady green signal may proceed across the roadway within a marked or unmarked crosswalk and that the traffic turning right [*4]or left shall yield the right of way to pedestrians in the intersection. Moreover, counsel contends that as a pedestrian with the right of way and walking in the crosswalk, plaintiff was entitled as a matter of law to anticipate that the other vehicles would obey the traffic laws that require them to yield (see 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]).

In opposition, defendant's attorney, Kathleen T. Fitzgerald, Esq., contends that based upon the testimony of the parties there is a question of fact as to the comparative negligence of the plaintiff. Although the plaintiff testified that she was in the crosswalk as she was crossing 71st Avenue the defendant testified that when she observed the plaintiff and when her vehicle struck the plaintiff, the plaintiff was not in the crosswalk. Counsel contends that the plaintiff's actions, as testified to by the defendant, were negligent pursuant to VTL § 1152 which states that a pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. Counsel contends that the plaintiff did not use reasonable care in crossing the roadway.

Thus, defendant avers that the evidence does not establish plaintiff's freedom from comparative negligence as a matter of law as there is a question of fact as to whether plaintiff was in the crosswalk at the time of the collision and if not, whether the plaintiff was negligent under VTL § 1152(a) for failing to yield the right of way to vehicles in the roadway.

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]).

To be entitled to summary judgment, the plaintiff must submit evidence that demonstrates that while crossing the street, within the crosswalk and with the pedestrian signal in her favor, the defendant driver violated Vehicle and Traffic Law § 1112(a) by failing to yield the right of way to the pedestrian and that the plaintiff was free from comparative negligence and exercised due care by looking to check for approaching vehicles before entering the intersection (see Martinez v Kreychmar, 84 AD3d 1037 [*5][2d Dept. 2011]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2d Dept. 2009]).

Here, the plaintiff testified that she entered the marked crosswalk after looking for approaching vehicles and exercised reasonable care and was walking across 71st Avenue within the crosswalk, when defendant made a right turn onto 71st Avenue and failed to yield the right of way. The defendant had a statutory duty to yield the right of way to the plaintiff and to use due care to avoid colliding with a pedestrian on the roadway (see Vehicle and Traffic Law §§ 1112(a) and 1146 and 1152(a), as well as a common-law duty to see that which she should have seen through the proper use of her senses (see Domanova v State of New York, 41 AD3d 633 [2007]; Larsen v Spano, 35 AD3d 820 [2d Dept. 2006]). Moreover, the defendant conceded that although she observed the plaintiff in the roadway prior to the accident her foot missed the brake peddle when she attempted to stop and wound up on the floorboard and she was unable to stop her vehicle as a result (see Parrinello v Davis, 2 AD3d 610 [2d Dept. 2003]; Dragunova v Dondero, 305 AD2d 449 [2d Dept. 2003]; Garner v Fox, 265 AD2d 525 [2d Dept. 1999]). Further, defendant admitted to the police officer that she did not see the plaintiff prior to striking her.

Therefore, this Court finds the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant driver, in violation of Vehicle and Traffic Law § 1112 (a), failed to yield the right-of-way to her as he was crossing the street within the crosswalk with the pedestrian "Walk" signal in her favor, and that she was free from comparative fault (see Brown v Pinkett, 2013 NY Slip Op 7005 [2d Dept. 2013]; Moreira v M.K. Travel & Transp., Inc., 106 AD3d 965 [2d Dept. 2013]; Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d 682 [2011]; Qamar v Kanarek, 82 AD3d 860 [2011]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2009]; Sulaiman v Thomas, 54 AD3d 751[2008]).

In opposition, the defendant failed to raise a material question of fact. Although the defendant testified that the plaintiff was not in the crosswalk when she was struck, the defendant told the police officer at the scene that she did not see the plaintiff prior to striking her and testified at her deposition that she attempted to stop her vehicle to yield the right of way to the plaintiff but because her foot accidentally missed the brake pedal she was not able to stop her vehicle. In addition, the police report, which is based upon the statements of both parties, depicts the plaintiff in the crosswalk when she was struck and finds that defendant failed to yield the right of [*6]way. The defendant's statement that the plaintiff was not in the marked crosswalk is belied by her admission to the police that she did not see the plaintiff and that she could not have avoided striking the plaintiff because her foot missed the brake pedal. Therefore, the court finds that the defendant's negligence in failing to yield the right of way to the plaintiff and failing to stop her vehicle prior to making contact with the defendant was the sole proximate cause of the accident (see Benedikt v Certified Lumber Corporation, 60 AD3d 798[2d Dept. 2009]; Cuevas v Chavez, 31 Misc 3d 1218(A) aff'd 94 AD3d 803 [2d Dept. 2012). Therefore, this Court finds that the defendant failed to meet her burden of demonstrating a material issue of fact which would preclude summary judgment.

Accordingly, based on the foregoing, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiff, ELIZABETH BONET, shall have summary judgment on the issue of liability as against the defendant, SARA J. GOSTL, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that upon 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 only.

Dated: November 7, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.