Keel Woo
Lee, Plaintiff,
against
Myung Sook Yoon, Defendant.
MYUNG SOON YOON Plaintiff - -
against
KEEL WOO LEE, Defendant.
|
10198/2012
Robert J. McDonald, J.
The following papers numbered 1 to 11 were read on this motion by defendant,
MYUNG SOOK YOON, for an order pursuant to CPLR 3212(b) granting defendant
summary judgment on the issue of liability and dismissing the complaint of plaintiff
KEEL WOO LEE under Index No. 10198/2012:
Papers Numbered
Notice of Motion-Affidavits-Exhibits.................1 - 6Affirmation in
Opposition-Affidavits-Exhibits........7 - 9
Reply Affirmation...................................10 -
11________________________________________________________________
This is a personal injury action in which plaintiff, KEEL [*2]WOO LEE, seeks to recover damages for injuries he
allegedly sustained when his vehicle collided with the defendant's vehicle on January 10,
2012, near the intersection of Northern Boulevard and 149th Street, Queens County,
New York.
The plaintiff commenced this action by filing a summons and complaint on
May 14, 2012. Issue was joined by service of the defendant's verified answer dated June
18, 2012. This action was consolidated for joint trial with the action entitled MYUNG
SOON YOON against KEEL WOO LEE filed under Index No. 2688/12 pursuant to the
memorandum decision of Justice Valerie Braithwaite Nelson dated March 25, 2013. The
matter is presently on the calendar of the Trial Scheduling Part for November 6,
2014.
Defendant Myung Sook Yoon now moves for an order pursuant to CPLR
3212(b), granting summary judgment dismissing the complaint of plaintiff, Keel Woo
Lee, on the ground that the defendant bears no liability for the causation of the subject
accident.
In support of the motion, defendant Yoon submits an affirmation from
counsel; a copy of the pleadings; a copy of 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, Keel Woo Lee and defendant, Myung Sook Yoon.
Defendant, MYUNG SOOK YOON, testified at an examination before trial
on August 12, 2013. She stated that the accident occurred on January 14 2012. She was
operating a 2001 Toyota minivan. She was on the south side of Northern Boulevard and
made a left turn from 149th place into the left lane of the westbound Northern
Boulevard. She stated that she was driving in the lane to the right of the left turn lane.
She states that she was driving straight ahead when her vehicle was struck on the right
side by left side of the plaintiff's vehicle. Her vehicle was struck before she reached the
intersection at Northern and 149th Street. She did not see the other vehicle prior to the
impact.
In his examination before trial taken on October 11, 2013, the plaintiff, Keel
Woo Lee, age 51, testified that he was employed as a taxi dispatcher. On the date of the
accident he was driving a 2001 Honda Odyssey. He was on 149th Place on the North
side of Northern Boulevard and he made a right turn from 149th Place onto the
westbound lanes of Northern Boulevard. He intended to make a left turn at the next
intersection from Northern Boulevard onto 149th Street. He saw the defendant's vehicle
on the opposite side of 149th Place before he made his turn. When he made his turn he
was in the right lane and then moved into the [*3]left lane
which was the lane next to the left turn lane. The defendant was also driving in the left
lane. He activated the left turn signal and as he attempted to move his vehicle into the left
turn lane he collided with the defendant's vehicle. His vehicle was halfway in the left turn
lane when the accident occurred. The front left of his vehicle was damaged as was the
right side of he defendant's vehicle.
The police report prepared by the responding officer describes the accident
as follows:
"At t/p/o, the operator of veh No.1(defendant) states she was traveling
westbound on Northern Boulevard when Veh #2(plaintiff) was attempting to make a
U-turn. Operator of Veh #2(plaintiff) states he was attempting to make a lane change on
westbound Northern Boulevard from the center lane to the left lane as Veh #1
(defendant) tried to go around him causing a collision between both vehicles."
In support of the motion for summary judgment, defendant's counsel
contends that the deposition testimony demonstrates that the accident occurred when
plaintiff Lee was attempting to enter the left turn lane of Northern Boulevard at 149th
Place. Counsel states that as the plaintiff was attempting to enter the left turn lane, the
left front side of the plaintiff's vehicle struck the passenger side of the defendant's vehicle
which was fully within the left turning lane. Counsel claims that the plaintiff's attempt to
change lanes when it was unsafe to do so was in violation of VTL § 1128 and was
the sole proximate cause of the accident.
In opposition, plaintiff Lee's counsel contends that the testimony of the two
drivers in inconsistent and as such there are material issues of fact as to the negligence of
the respective drivers and the proximate cause of the accident. Plaintiff asserts that the
evidence shows that each driver had a different version of the accident specifically as to
which lane the accident occurred in and which driver had the right of way. Further,
counsel asserts that defendant Yoon, who testified that she did not see the plaintiff's
vehicle prior to the accident, failed to demonstrate her freedom from comparative
negligence.
In reply, the defendant's counsel asserts that the evidence shows defendant
was traveling straight ahead in the left lane when the plaintiff's vehicle attempted to enter
the defendant's lane causing contact between the two vehicles.
Upon review of the plaintiffs' motion, the defendant's [*4]opposition and the plaintiff's 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]).
Upon review of the defendant's motion for summary judgment , and the
affirmation in opposition and reply thereto, this Court finds as follows:
The defendant established his prima facie entitlement to judgment as a
matter of law by presenting evidence that the plaintiff, Keel Woo Lee, was unsafely
changing lanes on Northern Boulevard attempting to get over to the left turn lane at the
intersection of 149th Street. The testimony demonstrates that plaintiff, while moving his
vehicle to the left lane on Northern Boulevard, failed to yield the right of way to the
defendant who was operating her vehicle in a left lane of traffic. As a result of the unsafe
lane change he negligently struck the right side of defendant's vehicle in violation of
Vehicle and Traffic Law§ 1128. The defendant, who was proceeding lawfully in a
single lane of traffic, also showed that she was free from comparative fault, and that the
plaintiff's unsafe lane change the sole proximate cause of the accident (see Walker v Patrix Trucking NY
Corp., 115 AD3d 943 [2d Dept. 2014]; Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept.
2014]; Rivera v Corbett, 69
AD3d 916 [2d Dept. 2010]). A violation of the Vehicle and Traffic Law constitutes
negligence as a matter of law (see Adobea v Junel, 114 AD3d 818 [2d Dept. 2014]; Vainer v DiSalvo, 79 AD3d
1023 [2d Dept. 2010]). The defrendant was entitled to anticipate that plaintiff would
obey the traffic law requiring him to yield (see Jacino v Sugerman, 10 AD3d 593 [2d Dept. 2004]).
Further, a driver with the right-of-way who has only seconds to react to a vehicle which
has failed to yield is not comparatively at fault for failing to avoid the collision (see Kenda v Dunn, 117 AD3d
803 [2d Dept. 2014]; Doyle
v. Metropolitan Transp. Auth., 116 AD3d 914 [2d Dept. 2014]; Yelder v Walters, 64 AD3d
762 [2d Dept. 2009]).
In opposition, the plaintiff failed to raise a triable issue of fact s to whether
the defendant was at fault in the happening of the accident (see Colandrea v Choku, 94 AD3d
1034 [2d Dept. 2012]).
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, the motion by defendant, MYUNG SOOK LEE, for summary
judgment on the issue liability and dismissing the complaint of plaintiff, KEEL WOO
LEE, under Index No. 10198/2012 is granted, and it is further,
ORDERED, that the Clerk of Court is authorized to enter judgment
accordingly.
Dated: September 2, 2014
Long Island City, NY
_______________________
ROBERT J. MCDONALDJ.S.C.