The following papers were used on this motion: NYSCEF Document Nos. 18-27, 29-32.

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

On January 4, 2022, at approximately 1:40 P.M., Plaintiff was a pedestrian crossing 39th Street at the intersection of 9th Avenue in Brooklyn, New York, in the crosswalk when she was struck by a motor vehicle operated by Defendant Melchi Louis Laurent ("Defendant Laurent") and owned by Defendant Visionpro Networks Inc. ("Defendant Visionpro"). Defendant Laurent [*2]does not dispute that he struck Plaintiff.

Plaintiff waited about 30 seconds when the traffic light for 39th Street turned red, and the pedestrian traffic control turned in her favor. Before the incident, Plaintiff looked to her left and right, and then she crossed the street in the crosswalk, walking at a normal pace when Defendant's vehicle came around the corner, made a right turn, and ran over Plaintiff's foot without sounding its horn (see NYSCEF Doc No. 24 ¶¶ a-i). This is further corroborated by Defendant Laurent's admission to Sergeant Michael Dangelo ("Officer Dangelo") that Defendant made a right turn on the green light when a pedestrian crossed the street at the intersection (see NYSCEF Doc No. 25).^[FN1]

On February 24, 2022, Defendant Laurent pleaded guilty before the Office of Administrative Trials and Hearings to violating § 19-190 (b) of the New York City Administrative Code (see NYSCEF Doc No. 26).^[FN2]

Plaintiff moves for summary judgment on the issue of liability and to strike affirmative defenses, asserting that Defendant Laurent's failure to comply with the traffic signal was the sole proximate cause of the accident. Plaintiff contends that Defendants are collaterally estopped from contesting liability as Defendant Laurent pleaded guilty to § 19-190 of the New York City Administrative Code for "failing to yield to a pedestrian . . . when such pedestrian . . . has the right of way . . ." (Administrative Code § 19-190 [a]). Additionally, Plaintiff asserts that Defendants are liable for Defendant Laurent' violations of several New York Vehicle and Traffic Law (VTL) provisions, rendering him negligent per se. Further, Plaintiff argues that Defendant Visionpro is vicariously liable for the actions of Defendant Laurent under the doctrine of respondeat superior, as Defendant Laurent was operating the vehicle within the scope of his employment at the time of the accident. Finally, Plaintiff asserts that she should be deemed free of any comparative fault as she exercised due care when crossing the crosswalk. As a result, Plaintiff concludes by urging that Defendants cannot assert any defense alleging that Plaintiff is at fault, including claims of carelessness, negligence, or assumption of risk. In addition to seeking to strike such affirmative defenses, Plaintiff also seeks to strike affirmative defenses asserting the emergency doctrine and Plaintiff's lack of entitlement to punitive damages.

Unlike Plaintiff, who submitted her own affirmation, neither Defendant did so. Their attorney did, basically not opposing summary judgment on the issue of liability but arguing against striking affirmative defenses, especially that of comparative negligence. However, the affirmation was submitted the day before oral argument.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

For the motion for summary judgment on the issue of liability to be granted, Plaintiff must establish a prima facie case of entitlement to judgment as a matter of law, and no material issue fact should exist.

VTL § 1111 (a) (1) provides the following:

Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited."

Additionally, VTL § 1146 (a) provides in pertinent part:

"Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway and shall give warning by sounding the horn when necessary."

[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se" (Callahan v Glennon, 193 AD3d 1029, 1030 [2d Dept 2021]). "A driver who faces a green light has a duty to yield the right-of-way to pedestrians who are lawfully within a crosswalk in accordance with the standard of care imposed by Vehicle and Traffic Law § 1111 (a) (1) . . ." (Lieb v Jacobson, 202 AD3d 1072, 1073 [ 2d Dept 2022]). "A driver also has 'a statutory duty to use due care to avoid colliding with pedestrians on the roadway [pursuant to Vehicle and Traffic Law § 1146], as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses' " (Lieb, quoting Barbieri v Vokoun, 72 AD3d 853, 856 [2d Dept 2010]).

Further, every driver has an obligation to see what is there to be seen and to yield the right of way to all pedestrians crossing within the crosswalk (see Crist v Rosenberger [2d Dept 2023]).

In Gooden v EAN Holdings, LLC (189 AD3d 1552 [2d Dept 2020]), the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting the police accident report and an affidavit from a witness who averred that the defendants' vehicle struck the infant plaintiff with its front bumper while the infant plaintiff was crossing the avenue in a marked crosswalk with an active pedestrian signal (see also Wray v Galella, 172 AD3d 1446 [2d Dept 2019]; Lazarre v Gragston, 164 AD3d 574 [2d Dept 2018]).

As such, in circumstances where the driver strikes a pedestrian walking in the crosswalk with the traffic light in their favor, appellate courts typically grant summary judgment against the defendant driver e.g. Batista v Alvarez, 225 AD3d 734 [2d Dept 2024]; Festagallo v Mandelbaum, 213 AD3d 741 [2d Dept 2023]. In Zabusky v Cochran (234 AD2d 542 [2d Dept 1996]), the Second Department held that the defendant's failure to yield the right-of-way to a pedestrian lawfully in the crosswalk constituted liability as a matter of law. The Second Department further held that "[t]he evidence submitted by plaintiffs was sufficient to establish their entitlement to summary judgment on the issues of liability" (id. at 191).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Ortiz v Zurita, 195 AD3d 734, 735 [2021]). "To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (see Rodriguez v City of New York, 31 NY3d 312 [2018]).

Here, Defendant Laurent failed to yield the right of way to Plaintiff, a pedestrian, as he struck her foot while making a turn. Plaintiff was lawfully crossing the crosswalk with the pedestrian signal in her favor. By failing to yield, Defendant Laurent violated VTL § 1111 (a) (1) and § 1146 (a), constituting negligence per se. Furthermore, Defendant Laurent, having admitted to Officer Dangelo that Plaintiff was crossing with the pedestrian signal in her favor, is sufficient to establish Plaintiff's prima facie entitlement to judgment as a matter of law. Therefore, Plaintiff is not required to prove the absence of her own comparative fault.

Having established a prima facie case of negligence, the burden shifts to Defendants to raise a triable issue of fact.

Defendants' affidavit in opposition should not be considered because it was untimely submitted. Pursuant to CPLR 2214 (b), "[a]nswering affidavits . . . shall be served at least seven days [before the time at which the motion is noticed to be heard] if a notice of motion served at least sixteen days before such time so demands . . ." (CPLR 2214 [b]). Here, Plaintiff's notice of motion was served more than sixteen days before the return date and expressly required that [*3]answering affidavits be served no later than seven days prior to the hearing (see NYSCEF Doc No. 18). Nevertheless, Defendant's answering affidavit was submitted only one day before the hearing, in clear violation of the prescribed timeframe (see NYSCEF Doc No. 29). Given that the affidavit was filed on the eve of the motion's return date, January 31, 2025, Plaintiff had no opportunity to submit a reply to Defendant's argument. Courts have discretion to refuse consideration of late-filed opposition papers, even absent a showing of prejudice, where the late-filing party fails to provide a valid excuse for the delay (see Nakollofski v Kingsway Props., LLC, 157 AD3d 960 [2d Dept 2017]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [2d Dept 1999]; Bush v Hayward, 156 AD2d 899 [2d Dept 1989]; Romeo v Ben-Soph Food Corp., 146 AD2d 688 [2d Dept 1989]).

Accordingly, because Defendant submitted his opposition to Plaintiff's arguments in an untimely fashion, this untimely submission was not considered.

Plaintiff has provided a precise description of the events that occurred, showing that Plaintiff was crossing in the crosswalk with the light in her favor when Defendant Laurent drove over her foot by failing to yield the right of way to her. Given that Plaintiff's description of facts is uncontested by Defendants, there cannot exist any issue of material facts. There is prima facie evidence that a causal relationship existed between getting struck and the injuries Plaintiff sustained. Therefore, Plaintiff is entitled to summary judgment on the issue of liability against Defendants.

Plaintiff moves to strike second, sixth, and seventh affirmative defenses of Defendants.

The issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff also moved for summary judgment dismissing an affirmative defense alleging comparative negligence (see Cui v Hussain, 207 AD3d 788 [2d Dept 2022]; Kwok King Ng v West, 195 AD3d 1006 [2d Dept 2021]; Hai Ying Xiao v Martinez, 185 AD3d 1014 [2d Dept 2020]). A plaintiff struck while walking in a crosswalk establishes prima facie that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk (see Cui, 207 AD3d at 788).

Here, Plaintiff's affirmation establishes that Plaintiff did not begin to cross the crosswalk until the light changed in her favor, and that Plaintiff looked for vehicles beforehand by looking to her left and her right (see NYSCEF Doc No. 19 ¶ d-f). Accordingly, Plaintiff is entitled to summary judgment striking the second affirmative defense of comparative negligence (see Batista, 225 AD3d 734; Wray, 172 AD3d 1446; Hoque v Mehri Trans, Inc., 152 AD3d 749 [2d Dept 2017]). The second affirmative defense also alleged assumption of the risk, which doctrine is not applicable to accidents in which a pedestrian is struck by a motor vehicle accident (see Hartell v Shaukat, 227 AD3d 963, 965 [2d Dept 2024]; De Diaz v Klausner, 198 AD3d 475 [1st Dept 2021]).

Plaintiff also seeks to strike Defendants' sixth and seventh affirmative defense, which respectively invoke the emergency doctrine and claim that the punitive damages sought are unconstitutionally excessive. The emergency doctrine provides that when an individual is confronted with a sudden and unforeseen situation beyond their control, leaving little to no time for deliberation, or causing significant distress that necessitates an immediate response, they may not be deemed negligent — so long as their actions are reasonable and prudent given the circumstances (see Caristo v Sanzone, 96 NY2d 172 [2001]; Rivera v New York City Tr. Auth., 77 NY2d 322 [1991]). The emergency doctrine does not apply here, especially where there is no affidavit from Defendant Laurent.

With respect to Defendants' seventh affirmative defense, Plaintiff has not asserted a claim for punitive damages in the Complaint. Consequently, there is no basis for Defendants to raise this defense. "[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives" (Gravitt v Newman, 114 AD2d 1000, 1002 [2d Dept 1985]; see Nooger v Jay-Dee Fast Delivery, 251 AD2d 307 [2d Dept 1998]; Spinosa v Weinstein, 168 AD2d 32, 42-43 [2d Dept 1991]). As no such allegations exist in this matter, punitive damages are inapplicable here. Accordingly, Plaintiff is entitled to summary judgment striking Defendants' sixth and seventh affirmative defenses.

Accordingly, Plaintiff's motion is GRANTED in its entirety, and Defendants' second, sixth, and seventh affirmative defenses are STRICKEN. Defendants are declared liable and the trial shall proceed on the issue of damages only.