The following papers numbered 1 to 12 were read on this motion by plaintiff, ROBERT HOFFMAN, 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..................................10 - 12

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This is a personal injury action in which plaintiff, Robert Hoffman, seeks to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred on October 27, 2011, at approximately 6:30 p.m. on Northern Boulevard near the intersection of 147th Street, Queens County, New York. At the time of the accident, the plaintiff was a pedestrian who was struck by the motor vehicle owned by Chung K. Wong and operated by defendant, Peng Zhen Huang. The plaintiff was struck while crossing Northern Boulevard while the defendant was exiting a driveway located on the eastbound side of Northern Boulevard and turning left onto the westbound side. As a result of the impact the plaintiff allegedly sustained injuries including several disc herniations and disc bulges. [*2]

Plaintiff commenced this action by filing a summons and verified complaint on April 10, 2012. Issue was joined by service of defendant's verified answer dated April 18, 2012. A Note of Issue was filed on June 7, 2013 and the matter is presently on the calendar of the Trial Scheduling Part for June 3, 2014.

The plaintiff moves for an order, pursuant to CPLR 3212(b), granting partial summary judgment in his 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, Souren A. Israelyan, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the police accident report; a copy of plaintiff's Notice to Admit; and copies of the transcripts of the examinations before trial of the plaintiff Robert Hoffman and defendant, Zhen Peng Huang s/h/a/ Peng Zhen Huang.

The description of the accident prepared by the police officer called to the scene states: "at t/p/o vehicle #1 stated he was exiting a driveway, crossing Northern Boulevard when he struck pedestrian. Veh # 1 states he did not see pedestrian due to the weather. Pedestrian stated he was crossing Northern Boulevard when he was struck from behind by Veh # 1."

Plaintiff, age 61, an employee of Brandywine Assisted Living, testified at a deposition on October 12, 2013. He stated that he was involved in a pedestrian knockdown accident near the intersection of Northern Boulevard and 147th Street in Flushing on October 27, 2011 at about 6:30 p.m. The weather was rainy. He states that in that area Northern Boulevard runs east and west with two lanes of traffic in each direction. The intersection at 147th Street is controlled by a traffic light. Plaintiff was on the eastbound side of Northern and was crossing to the westbound side. He states, "I was not exactly in the crosswalk, but close to it." He stated he was actually 20-25 feet away from the crosswalk. He testified that before he crossed Northern Boulevard he looked to see if there was traffic coming from the eastbound direction. He stated that there was no traffic coming eastbound so he crossed the eastbound lanes and stopped in the striped median which he called a "stripe zone" or "no-man's land."

However, before fully crossing to the other side of Northern Boulevard he elected to remain in the five foot wide striped area which divided the two directions of traffic to check on the traffic going in a westbound direction. While he was standing in the striped median area he was struck in the lower back by the defendant's vehicle. The plaintiff got up and went back to a local pizza store where there were police officers. He told the [*3]officers that he was crossing Northern and he took one step because the light had just changed and he was struck and catapulted inside the stripped median area. Three days following the accident he sought treatment at the emergency room at Flushing Hospital.

Defendant Huang, age 26, testified on October 12, 2012, that he works in a computer store, known as NCS located at 147-48 Northern Boulevard which is 10 - 15 car lengths from the accident scene on the eastbound side of Northern Boulevard about a block away from the intersection of Northern and 147th Street. On the date in question he was operating a 2009 Honda Accord owned by his father. When he went to work he would park in a small parking lot behind the store. The exit for the parking lot is next to the Mobil Station on the corner of Northern and 147th Street. On the date of the accident he pulled out of the driveway on Northern, he looked both ways, observed that the eastbound lanes of Northern Boulevard, the side he was on, was free of traffic so he decided to make a left turn over the striped median to enter the westbound lanes. He stated that as he made the turn he struck the plaintiff while the plaintiff was standing in the striped dividing area. The defendant testified that he did not see the plaintiff until one second before the front of his car came in contact with the back of the plaintiff. He stated that the plaintiff was standing in the street four cars away from the intersection when he was struck. The defendant testified that around the striped dividing space are double yellow lines. The defendant testified that he was aware that it was a violation to cross the double yellow lines. He stated that after he struck the plaintiff he exited his vehicle and helped the plaintiff to the sidewalk.

In support of the motion for partial summary judgment, plaintiff's 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 pedestrian and failing to yield the right of way to a pedestrian who was visible in the street directly front of him.

In addition, plaintiff claims that the defendant violated VTL § § 1130(1) and 1146(a) and NYC Traffic Rules § 4-07(h)(1) and 4-04(d) by driving over, across and within the dividing space where there was no opening or dividing section, by crossing over double yellow lines, and by failing to exercise due care to avoid colliding with any pedestrian. Plaintiff claims that the negligence of the defendant-driver was the sole proximate cause of the accident and Mr. Hoffmann's presence in the striped [*4]dividing space on the highway at the time he was struck merely furnished the condition or occasion for the occurrence of the event rather than one of its causes (citing Sheehan v City of New York, 40 NY2d 496 [1976] Vasquez v Roldan, 86 AD3d 640 [2d Dept 2011]).

In opposition, defendant's attorney, Christina M. McGreevy, Esq., contends that questions of fact exist on the issue of whether the plaintiff's own negligence contributed to the accident. Counsel claims that the plaintiff himself stated that he crossed Northern Boulevard 25 feet away from the crosswalk and was standing in the middle of the highway in a striped dividing area when the accident occurred. Counsel also contends there is a question of the visibility of the plaintiff based upon his testimony that is was raining at the time and he was wearing a navy blue jacket with a hood and black pants. Counsel does not dispute the negligence of her client in crossing the striped dividing area to make a left turn, but asserts that the fact that the pedestrian undertook to cross the street at a place other that a regular crosswalk required him to use greater care for his own safety than when he crosses at a crosswalk (citing Franco v. Zingarelli, 72 AD2d 211 [1st Dept. 1980]). Counsel states that the plaintiff did not use great care as he chose to wear dark clothing at night, crossed outside crosswalk, stopped in the middle of Northern Boulevard and never looked for traffic in the westbound lanes before being struck. Counsel claims that the plaintiff violated VTL § 1152(a) which requires a pedestrian crossing a roadway at any point other than a marked intersection to yield the right of way to all vehicles on the roadway.

In reply, the plaintiff's counsel asserts that it is not negligence per se when a pedestrian crosses at a site other than a crosswalk (citing Deitz v Huibregtse, 25 AD3d 645 [2d Dept. 2006]). Counsel argues the plaintiff was merely waiting in the median area to cross and did not see the defendant's vehicle which came from behind him.

Upon review and consideration of the plaintiff's motion, defendant's affirmation in opposition, and the plaintiff's reply thereto, this court finds that the plaintiff's motion for partial summary judgment on the issue of liability is denied.

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 [*5](see Zuckerman v City of New York, 49 NY2d 557[1980]).

This Court finds the testimony of the parties demonstrated that the defendant-driver, was negligent as a matter of law in that he violated Vehicle and Traffic Law § 1130(1) by driving across the space dividing the two directions of traffic in the middle of Northern Boulevard. It is clear that there was no marked crossover area indicting that the plaintiff was permitted to cross or drive over the dividing space. Further, it is clear that the defendant, who stated that he did not see the pedestrian in the roadway failed to exercise due care in violation of VTL1146(a).

However, although a violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v DiSalvo, 79 AD3d 1023 [2010], there can be more than one proximate cause of an accident (see Lopez v Reyes-Flores, 52 AD3d 785,[2008]). Consequently, "the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law (see Antaki v Mateo, 100 AD3d 579 [2d Dept 2012] Pollack v Margolin, 84 AD3d 1341 [2011). Here, the plaintiff failed to establish, prima facie, that he was not comparatively at fault in the happening of the accident. The plaintiff admitted that he crossed Northern Boulevard 25 feet away from crosswalk, that he began crossing without determining that traffic was clear in both directions, and that he stood in the middle of Northern Boulevard waiting for westbound traffic to clear. Therefore, there is a question of fact as to whether he exercised due care in attempting to cross the street in mid-block where there was no crosswalk. Although crossing outside the crosswalk is not negligence as a matter of law, under the circumstances of this case, whether the plaintiff exercised reasonable care is a triable issue of fact for the jury (see Shui-Kwan Lui v Serrone, 103 AD3d 620 [2d Dept. 2013] Yi Min Feng, v Jin Won Oh, 71 AD3d 879 [2d Dept 2010] Parrinello v Davis, 2 AD3d 610 [2d Dept. 2003]).

Thus, viewing the evidence submitted in support of the defendant's motion in the light most favorable to the nonmoving party there is a triable issue of fact as to whether any negligence on the plaintiff's part contributed to the accident. The failure to establish freedom from comparative fault requires the denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the defendants' opposition papers.

Accordingly, based on the foregoing, it is hereby

ORDERED, that the plaintiff's motion for an order granting partial summary judgment on the issue of liability is denied.

Dated: March 19, 2014

Long Island City, NY

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ROBERT J. MCDONALD, J.S.C