Sam Kyu Park
and SANG SU PARK, Plaintiffs,
against
Christine Tong, Defendant.
|
701117/2013
Robert J. McDonald, J.
The following papers numbered 1 to 18 were read on this motion by plaintiff on the
counterclaim, SAM KYU PARK, for an order pursuant to CPLR 3212(b) dismissing the
defendant's counterclaim; and the cross-motion of the plaintiffs for an order granting
partial summary judgment on behalf of the plaintiffs and setting the matter down for a
trial on damages only:
Papers
Numbered
Plaintiff on the Counterclaim's Notice of Motion ..........1 - 6
Plaintiffs' Cross-Motion...................................7 - 10
Defendants' Affirmation in Opposition.....................11 - 14
Plaintiff on the Counterclaim Reply...................... 15 - 18
In this action for negligence, the Plaintiffs, SAM KYU PARK and SANG
SU PARK, seek to recover damages for personal injuries they each allegedly sustained as
a result of a motor vehicle accident that occurred on February 21, 2013. The motor
vehicle accident took place on 150th Street between 14th Avenue and the Cross Island
Expressway, Queens County, New York. Plaintiffs allege that they each sustained
injuries when their vehicle was struck by the vehicle owned and operated by the
defendant Christine Tong.
This action was commenced by the plaintiff by the filing of a summons and
complaint on or about March 20, 2013. Issue was joined by service of defendants'
verified answer with counterclaim against plaintiff Sam Kyu Park dated April 29, 2013.
A reply to counterclaim was served by the plaintiff on the counterclaim on June 25,
2013.
Plaintiff on the counterclaim now moves, prior to depositions, for an order
pursuant to CPLR 3212(b), granting summary judgment dismissing the defendant's
counterclaim and [*2]plaintiffs cross-move for partial
summary judgment against the defendant on the issue of liability.
In support of the motion, the plaintiff on the counterclaim submits an
affirmation from counsel, Won J. Sohn, Esq; a copy of the pleadings; an affidavit from
the plaintiff Sam K. Park; and a copy of the police accident report MV 104. Counsel on
the cross-motion, Jung Choi, Esq., submits an affirmation stating that he adopts the
arguments of counsel for plaintiff on the counterclaim.
Plaintiff Sam K. Park states in his affidavit dated February 5, 2014, that on
February 21, 2013 he was the operator of a 2012 Honda Pilot owned by his aunt, Kewa
Cho. He states that the accident occurred on 150th Street between 14th Avenue and the
Cross-Island Parkway in Queens, New York. He states, at the time of the accident, he
was operating his vehicle on 150th Avenue at a speed of 20 miles per hour, and had
passed the intersection with 14th Avenue and was headed in the direction of the
Cross-Island Parkway. He was proceeding straight ahead when he felt an impact to the
right rear side of his vehicle. He states that his vehicle was struck on the passenger side
rear well area by the front driver's side corner of the defendant's vehicle. He states that he
learned that the vehicle that struck his vehicle was operated by the defendant and that the
defendant's vehicle was pulling out of a parking space along 150th Street when the
accident occurred.
In the description portion of the accident contained in the motor vehicle
accident report filed by the officer who responded to the scene, the police officer states
that, "at t/p/o Veh No.1 (Park) states that he was driving straight ahead when Veh #2
(Tong) pulled out of a parking spot, striking Veh #1. Driver of Veh #2 states that she was
coming out of the parking spot when Veh #1 came out of nowhere striking her
vehicle."
The plaintiffs and the plaintiff on the counterclaim both contend that the
defendant driver was negligent in the operation of her vehicle in striking the plaintiffs'
vehicle while exiting the parking spot. Plaintiffs' counsel contends that the accident was
caused solely by the negligence of the defendant driver in that she violated VTL §
1212 by failing to check the prevailing traffic conditions before she pulled out and by
failing to yield the right of way to the plaintiff. Counsel contends that the evidence
indicates that the plaintiffs' vehicle was lawfully proceeding on 150th Street with the
right of way when he was confronted with a sudden and unexpected emergency situation
not of his making and thus any error of judgment on his part is not considered
negligence. Counsel contends, therefore, that the plaintiff on the counterclaim is entitled
to summary judgment dismissing the defendants' counterclaim because the defendant,
alone, was negligent in failing to yield the right of way when exiting the parking spot that
the plaintiff/driver was free from culpable conduct and defendant's negligence was the
sole proximate cause of the accident.
In opposition, defendant's counsel, Hariharan Krishnaraj, Esq., contends that
a question of fact exists as to the causation of the accident. In support of the opposition,
defendant submits the affidavit of the defendant, Ms. Tong, who disputes the version of
the accident set forth by the plaintiff. In her affidavit dated June 24, 2014, Ms. Tong
states prior to the accident she was parked on 150th Street. She states that before moving
her vehicle from the parking spot she checked the roadway and did not see any vehicles
in the travel lane closest to where she was parked. After seeing no moving traffic in the
nearest traffic lane, she began to move her vehicle out of the parking spot. She states that
after the front of her vehicle was already in the travel lane, she felt an impact to the front
of her vehicle. She observed an SUV that was partly over the double yellow line had
come into contact with her vehicle.
Defendant's counsel argues that summary judgment is not warranted because
the defendant has presented a different version of how the accident occurred in which
she is free of culpable conduct and the plaintiff/driver's actions were the proximate cause
of the accident.
In reply, counsel for plaintiff on the counterclaim submits that his client was
faced with an emergency when the defendant suddenly and unexpectedly exited a
parking space in the roadway without making sure the roadway was clear, and that
plaintiff's actions were reasonable under the circumstances. Further, he argues that the
defendant failed to yield the right of way to the plaintiffs' vehicle and failed to see that
which through the proper use of her senses she should have seen. Counsel argues that as
his client had the right of way he was entitled to anticipate that defendant would obey the
traffic laws requiring her to yield.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 or her position (see Zuckerman v City of
New York, 49 NY2d 557[1980]).
Based upon a review of the respective affidavits of the parties, this Court
finds that there are material issues of fact which preclude the granting of summary
judgment to the plaintiffs and the plaintiff on the counterclaim on the issue of liability.
Although the plaintiff states that the defendant failed to yield the right of way to his
vehicle as she was pulling out of the parking space, the plaintiff/driver failed to provide
any statement regarding his own actions at the time the defendant exited the parking
space. For example, he failed to state his speed, his location when he first observed the
plaintiff's vehicle. and what actions he took such as slowing down or trying to change
lanes in order to avoid the accident.
Further, defendant stated that she looked for approaching traffic before
pulling out and did not see the defendant's car until he struck her vehicle after she had
entered a lane of moving traffic. 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]; Villa v Leandrou, 94 AD3d 980 [2d Dept 2012]; Calcano v Rodriguez, 91 AD3d
468 [1st Dept. 2012]). Although the plaintiff driver, who had the right-of-way, was
proceeding lawfully on 150th Street and was entitled to anticipate that the plaintiff would
obey the traffic laws (see Martin v Ali, 78 AD3d 1135, 1136 [2010]; Yelder v Walters, 64 AD3d
762 [2009]), the plaintiff driver also has a duty to exercise reasonable care to avoid a
collision. Further, the plaintiff failed to provide a sufficient factual predicate to
demonstrate that he was confronted by a sudden and unexpected circumstance. Thus, 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 and whether either or both parties were negligent (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]).
Therefore, 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] this court finds that there are factual issues concerning whether
the plaintiff and defendant each met their respective duty to observe what should have
been observed and to exercise reasonable care under the circumstances (see Wilson v Rosedom, 82 AD3d
970 [2d Dept. 2011]; Cox v
Weil, 66 AD3d 634 [2d Dept. 2009]; Borukhow v Cuff, 48 AD3d 726 [2d Dept. 2008]). Given
the conflicting versions as to how the accident actually occurred, issues of credibility
have been raised that cannot be determined on a motion for summary judgment.
Accordingly, for all of the above stated reasons it is hereby,
ORDERED, that the motion by plaintiff on the counterclaim for an order
granting summary judgment dismissing the defendant's counterclaim is denied, and it is
further,
ORDERED, that the cross-motion by the plaintiffs for partial summary
judgment on the issue of liability and setting the matter down for a trial on damages only
is denied
Dated: August 11, 2014
Long Island City, N.Y
____________________ROBERT J. MCDONALDJ.S.C.