This is a personal injury action in which Plaintiff, Glenn Finegan, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on June 19, [*2]2012, at approximately 9:30 p.m., on Woodhaven Boulevard near its intersection with Park Lane South, Queens County, New York. The accident occurred when the motorcycle operated by the plaintiff collided with the motor vehicle owned and operated by Richard Levkulic. Plaintiff contends that as a result of the accident he sustained physical injuries to his right knee, left shoulder, and left ankle.

The action was commenced by the plaintiff by the filing of a summons and complaint on November 9, 2012. Issue was joined by service of the defendant's answer dated December 14, 2012. Plaintiff filed a note of issue on December 12, 2013.

Samuel A. Shusterhoff, Esq., counsel for plaintiffs, now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment in favor of plaintiffs on the issue of liability and setting the matter down for a trial on damages only. In support of the motion, the plaintiffs submit an affirmation from counsel; a copy of the pleadings; a copy of plaintiffs' verified bill of particulars; and copies of the transcripts of the examinations before trial of the plaintiff, Glenn Finegan and the defendant, Richard Levkulic.

In his examination before trial taken on August 2, 2013, the plaintiff, age 43, an employee of Hunter College, testified that on the day of the accident at approximately 9:10 p.m. he was heading from his home in Queens County towards his job in Manhattan. He was operating a Kawasaki motorcycle on the northbound lanes of Woodhaven Boulevard at a rate of 30 miles per hour. He testified that as he approached the intersection of Park Lane South the traffic signal was green in his direction. Prior to entering the intersection he observed the defendant's vehicle proceeding southbound on Woodhaven Boulevard. He observed the defendant's vehicle make a left turn into the intersection in front of his motorcycle. When he first saw defendant's vehicle it was three car lengths in front of him. Plaintiff testified that the defendant's vehicle came to a stop in the middle of the intersection and was facing eastbound Park Lane South. He saw the vehicle two or three seconds prior to the impact. He applied his brakes heavily and steered the motorcycle towards the left lane to try to avoid the accident, but he struck the defendant's vehicle in the rear passenger side. He was ejected from the motorcycle and his body went over the car. He was transported from the scene by ambulance and was admitted to Elmhurst Hospital for treatment. He was confined to his home for two and a half months following the accident.

Defendant Richard Levkulic, age 74, testified at an examination before trial on August 2, 2013. On the day of the accident he was coming from his brother's house in Glendale, Queens and heading to his home in Woodhaven. He was proceeding south on Woodhaven Boulevard. When he got to the intersection of Park Lane South, the traffic signal was green in his direction. He was in the left turn lane and came to a complete stop. His intent was to make a U-turn into the center lane of Woodhaven Boulevard and then maneuver to the right into the service road. He stated that there were no signs in his direction as to whether U-turns were permitted at that location. He stated that he stopped, waited for traffic to be clear and then he commenced his turn. As he made his turn he heard the roar of a motorcycle and approximately five seconds later his vehicle was struck by the motorcycle. He stated he never stopped his vehicle in the intersection prior to the impact. [*3]

In support of the motion for summary judgment, plaintiff's counsel contends that the plaintiff's deposition demonstrates that plaintiff was traveling lawfully in the northbound lanes of Woodhaven Boulevard with the right of way and the green light in his favor and that plaintiff was not negligent as a matter of law. Counsel contends that defendant's negligent actions in making a U-turn in front of the plaintiff's vehicle without yielding the right of way, and in stopping and blocking traffic on Woodhaven Boulevard while in the process of making the turn without first ascertaining that it was safe to do so was a violation of VTL §§ 1162 and 1163(a) and was the sole proximate cause of the accident.

Plaintiff's counsel argues that the defendant admitted in his examination before trial that he was making a U-turn at the time the accident occurred. Counsel claims that the defendant was negligent as a matter of law in that he violated VTL § 1162 which states that "no person shall move a vehicle which is stopped, standing or parked unless and until such movement can be made with reasonable safety" (citing Colandrea v Choku, 94 AD3d 1034 [2d Dept. 2012]. Counsel claims that plaintiff was proceeding straight ahead with the right of way and was entitled to anticipate that the defendant would yield, which the defendant failed to do. Counsel argues that the defendant admitted he did not see the plaintiff's vehicle until after he was already in the intersection in the process of making his turn. In addition plaintiff argues that he was not comparatively negligent because he had the right of way and only seconds to react to the vehicle which failed to yield the right of way (citing Socci v Levy, 90 AD3d 1020 [2d Dept. 2011]).

In opposition to the motion, defendant's counsel, Cristin E. Hughes, Esq. submits that the deposition testimony of the parties raises questions of fact regarding the speed of the plaintiff's vehicle and whether the plaintiff struck the defendant's vehicle in the rear. Plaintiff cites to the defendant's testimony in which he stated that the plaintiff was speeding. Counsel also argues that there is a question of fact as to how the accident happened because the defendant stated that his vehicle was struck on the right rear corner indicating he had completed the U-turn when his vehicle was struck in the rear.

Upon review of the plaintiffs' motion, the defendants' opposition and the plaintiffs' reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure to make that showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Mastrangelo v Manning, 17 AD3d 326 [2nd Dept 2005]). 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]).

Based upon a review of the respective deposition testimonies of the parties this Court finds that there are material issues of fact which preclude the granting of summary judgment to the plaintiff on the issue of liability. Although the evidence shows that the defendant failed to [*4]observe oncoming traffic before proceeding into the intersection, and that he made a U-turn into plaintiff's lane of traffic when it was not safe to do so and without yielding the right of way in violation of Vehicle and Traffic Law §§ 1162 and 1163(a)(b) (see Ducie v Ippolito, 95 AD3d 1067 [2d Dept. 2012] Anzel v Pistorino, 105 AD3d 784 [2d Dept. 2013]), the plaintiff failed to demonstrate his freedom from comparative negligence.

In that regard, the Appellate Division has stated that "there can be more than one proximate cause of an accident and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law" (Winner v Star Cruiser Transp., Inc., 95 AD3d 1109 [2d Dept. 2012] citing Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011] Incle v Byrne-Lowell, 2014 NY Slip Op 1583 [2d Dept. 2014] Adobea v Junel, 114 AD3d 818 [2d Dept. 2014]] Villa v Leandrou, 94 AD3d 980 [2d Dept 2012] Calcano v Rodriguez, 91 AD3d 468 [1st Dept. 2012]). Although the plaintiff driver had the right-of-way, was proceeding lawfully on Woodhaven Boulevard and was entitled to anticipate that the plaintiff would obey the traffic laws (see Martin v Ali, 78 AD3d 1135 [2d Dept. 2010]), the plaintiff driver also has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way. The plaintiff testified that he first observed the defendant's vehicle proceeding southbound on the opposite side of Woodhaven Boulevard and continued to observe the defendant's vehicle while it entered the intersection in front of his vehicle. As the defendant's vehicle was already making the U-turn and was completely in the intersection prior to the plaintiff's vehicle arriving at the intersection, there is a triable issue of fact as to whether plaintiff failed to see what was there to be seen through the proper use of his senses, failed to exercise due care to avoid the collision or whether he was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present (see Espiritu v Shuttle Express Coach, Inc., 2014 NY Slip Op 1707 [2d Dept. 2014] Jones v Vialva-Duke, 106 AD3d 1052 [2d Dept. 2013]).

Thus, viewing the evidence in the light most favorable to the non-moving party (Stukas v Streiter, 83 AD3d 18 [2nd Dept. 2011] Judice v DeAngelo, 272 AD2d 583 [2nd Dept. 2000] the plaintiff's evidentiary submissions did not prove his freedom from negligence as a matter of law, and as such, were insufficient to establish, prima facie, that the defendant's actions were the sole proximate cause of the accident or to eliminate all issues regarding the facts surrounding the accident (see Allen v Echols, 88 AD3d 926[2d Dept. 2011] Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011] Myles v Blain, 81 AD3d 798 [2d Dept. 2011] Sayed v Aviles, 72 AD3d 1061 [2d Dept. 2010]).

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, the motion by plaintiff for partial summary judgment on the issue liability is denied.

Dated: March 28, 2014 [*5]

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.