A.P. v MCM Paving & Excavation, Inc.

Supreme Court, Rockland County

Decided on November 6, 2025

Index No. 034807/2024

Rachel E. Tanguay, J.

The following papers, NYSCEF documents numbered 24-60 were considered in connection with the following motions:

• Plaintiffs' Notice of Motion (Motion #1) for an Order, (i) pursuant to CPLR § 3212, granting summary judgment in favor of Plaintiffs on the issue of liability; (ii) pursuant to CPLR § 3211(b), dismissing Defendants' First Affirmative Defense alleging culpable conduct by Plaintiff; (iii) pursuant to CPLR § 3211(b), dismissing Defendants' Second Affirmative Defense asserting assumption of risk; and (iv) for such other and further relief as this Court deems just and proper.

• Defendants' Notice of Motion (Motion #2) for an Order, pursuant to CPLR § 3212 (i) denying Plaintiff's motion for summary judgment in its entirety; (ii) granting Defendants' motion for summary judgment; and (iii) for such other and further relief as this Court deems just and proper.

Upon the foregoing papers, the Court now rules as follows:

This action was commenced by Plaintiff on August 2, 2024, with the filing of the Summons and Complaint through the NYSCEF system. NYSCEF Doc .1. Defendants MCM Paving & Excavation, Inc. and Robert V. Halk filed an Answer on September 27, 2024 through the NYSCEF system. NYSCEF Doc. 6. This personal injury action arises out of an accident that occurred on July 10, 2024, wherein a thirteen-year-old boy (hereinafter "A.P.") was allegedly hit by a dump truck while riding his bicycle. NYSCEF Doc. 1. As a result, A.P. purportedly sustained severe injuries including open pelvic fractures, degloving injuries, bladder trauma and multiple emergency surgeries which required prolonged hospitalization. Id.

On July 8, 2025, Plaintiffs filed Motion #1 for an Order, (i) pursuant to CPLR § 3212, granting summary judgment in favor of Plaintiffs on the issue of liability; (ii) pursuant to CPLR § 3211(b), dismissing Defendants' First Affirmative Defense alleging culpable conduct by Plaintiff; (iii) pursuant to CPLR § 3211(b), dismissing Defendants' Second Affirmative Defense [*2]asserting assumption of risk; and (iv) for such other and further relief as this Court deems just and proper. NYSCEF Doc. 24. Plaintiffs argue that at the time of the alleged incident, A.P. was lawfully riding his bicycle in a clearly marked crosswalk when he was struck, run over and seriously injured by a commercial dump truck whose driver failed to yield, failed to see and failed to exercise the minimum care as required under New York Vehicle and Traffic Law (hereinafter "VTL"), in particular, (i) failure to yield at an uncontrolled intersection under VTL §§ 1142(a) and (b); (ii) failure to take due care to avoid bicyclists under VTL § 1146(a); (iii) failure to turn with reasonable safety under VTL § 1163(a); (iv) failure to yield at a crosswalk under VTL § 1151(a); (v) failure to stop or yield at a posted yield sign under VTL § 1172(a); and (vi) failure to abide by equal rights for cyclists in traffic under VTL § 1231. They allege that these statutory violations constitute negligence per se. In support of the instant motion, Plaintiffs submit, inter alia, various videos of the alleged incident; certified police report; certified police investigation report; an affirmation of A.P., dated July 2, 2025; and various images. NYSCEF Docs. 29-43.

Further, citing relevant legal precedent, Plaintiffs contend that this matter is ripe for summary judgment. See E.B. v. Gonzalez, 208 AD3d 618, 174 N.Y.S.3d 387 (2d Dept. 2012) (negligence under VTL § 1146(a) found where infant was hit in crosswalk by driver who admitted never seeing the child due to sun glare); see also Crist v. Rosenberger, 219 AD3d 569, 195 N.Y.S.3d 28 (2d Dept. 2023) (summary judgment affirmed where pedestrian struck while crossing street because driver failed to exercise due care under VTL § 1146); see also Kruter v. United Parcel General Services Co., 210 AD3d 671, 177 N.Y.S.3d 692 (2d Dept. 2022) (truck driver liable after failing to yield to cyclist rejecting comparative fault defense that he failed to see the cyclist).

Plaintiffs argue that the sole proximate cause of the alleged collision was Defendant Halk's failure to see and yield. They contend that A.P. entered the crosswalk lawfully, slowed before entry, believed the truck was yielding and proceeded at a reasonable speed. It is alleged that only 0.4 seconds elapsed from the truck's turn to impact making it impossible for A.P. to take an evasive action. With respect to alleged blind spots, Plaintiffs contend that such does not excuse negligence. The driver of a dump truck should be aware of known blind spots. Further, the dash cam video captured the top of A.P.'s head which proves that he was visible to a reasonably vigilant driver.

With respect to the First Affirmative Defense for comparative fault and the Second Affirmative Defense for assumption of risk, Plaintiffs argue that these affirmatives defenses are unsupported by the record and legally meritless. They contend that Defendants have not submitted any admissible evidence to claim that A.P. engaged in culpable conduct. As to assumption of risk, Plaintiffs aver that this does not apply to routine bike travel by a child. See Cotty v. Town of Southampton, 64 AD3d 251, 880 N.Y.S.2d 656 (2d Dept. 2009); see also Hartell v. Shaukat, 227 AD3d 963, 212 N.Y.S.3d 158 (2d Dept. 2024).

On August 22, 2025, Defendants filed opposition to Motion #1 and a cross-motion (Motion #2) for an Order, pursuant to CPLR § 3212 (i) denying Plaintiff's motion for summary judgment in its entirety; (ii) granting Defendants' motion for summary judgment; and (iii) for such other and further relief as this Court deems just and proper. NYSCEF Doc. 45. They argue that Plaintiff was negligent and violated VTL § 1231 under which A.P. was subject to all of the duties applicable to a driver of a motor vehicle. Defendants aver that Plaintiff's negligence was the sole proximate cause of the accident. They contend that A.P. entered the crosswalk after [*3]Defendant entered the intersection and began his turn; and by doing so, failed to yield the right of way to Defendant in violation of VTL § 1140(a); VTL § 1143; and VTL § 1234(c). Further, Defendants allege that A.P. knew or should have known that he was required to stop at the intersection and knew that the dump truck was turning given that he was continuously aware of it prior to him entering the crosswalk. In support of the cross-motion, Defendants submit, inter alia, (i) the Affirmation of Ilona Scully, an expert at examining and understanding the capabilities and limitations of humans as they interact with their environment and how these interactions can impact safety; (ii) the Affirmation of Timothy Joganich, an expert in the area of bicycle accident investigation and bicycle safety; and (iii) the Affirmation of Michael DiTallo, an expert in collision reconstruction and investigation. NYSCEF Docs. 48-50.

Defendants argue that they are entitled to summary judgment on the basis that the driver was unable to observe the Plaintiff prior to the accident, as well as the driver having had no chance to avoid striking the Plaintiff. See Johnson v. Lovett, 285 AD2d 627, 627, 728 N.Y.S.2d 753 (2d Dept. 2001); see also Wolf v. We Transp., Inc., 274 AD2d 514, 711 N.Y.S.2d 484 (2d Dept. 2000). They contend that the dash camera video shows Defendant driving slowly and approaching the intersection, and Plaintiff is nowhere to be seen. They aver that Plaintiff doesn't enter the crosswalk until after Defendant begins making his turn. With respect to Plaintiffs' argument that the view from the dash camera is the same as the driver's view and since A.P. can be seen in the camera, then the driver must have been able to see him; Defendants submit the affirmation of accident reconstruction expert Michael DiTallo who purports that the view from the dash camera is different than view from the driver's seat. DiTallo further avers that Defendant in the driver's seat was unable to see Plaintiff as Plaintiff rode his bike in the crosswalk in front of the turning truck. As such, Defendants argue that they cannot be liable to Plaintiff either because the driver had no ability to see Plaintiff before the accident or, even if he could have seen him, had no time to react and avoid the accident.

In reply to Motion #1 and opposition to Motion #2, Plaintiffs contend that the surveillance video which shows A.P. in the crosswalk when the dump truck first appears controls over speculative affidavits. Further, Defendants' experts purport varying observations with DiTallo and Scully claiming the truck turned first, and Joganich claiming A.P. was already in the crosswalk when the truck turned. Plaintiffs also aver that summary judgment on liability should be granted as a matter of law based on VTL § 1163(a) which provides that "[n]o person shall turn a vehicle at an intersection . . . unless and until such movement can be made with reasonable safety." VTL § 1163(a) (brackets added); see Harth v. Reyes, 151 AD3d 1031, 151 AD3d 1031 (2d Dept. 2017) (summary judgment granted on liability where motorist struck bicyclist who was ahead of him in bike lane while attempting a right turn and had failed to see what he should have seen).

Defendant, in reply to Motion #2, argues that the videos show and their experts opine that the dump truck was already in the intersection when Plaintiff entered the crosswalk and, as such, Plaintiff had the duty to yield to the truck that was allegedly already in the intersection and had begun its turn when Plaintiff purportedly decided to enter the crosswalk. Further, they contend that Plaintiff's argument that blind spots do not excuse negligence is not supported by case law, as the only case they cite regarding blind spots is about sun glare which is a foreseeable condition.

Legal Analysis

In deciding a motion for summary judgment, the Court's role is solely to determine [*4]whether triable issues of fact exist, not to decide those issues. F. Garofalo Electric Co. v. New York Univ., 300 AD2d 186, 754 N.Y.S.2d 227 (1st Dept. 2002). This is because the remedy of summary judgment is a drastic one and it should only be granted when it is clear that no triable issue of material fact exists. Alvarez v. Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 (1986); Andre v. Pomeroy, 35 NY2d 361, 362 N.Y.S.2d 131 (1974). On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852, 487 N.Y.S.2d 316, 317 (1985); Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 (1980). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 AD2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003); see Alvarez, supra.

Once such a showing has been made, the burden of proof shifts such that an opponent to a motion for summary judgment must demonstrate the existence of a genuine triable issue of fact. Alvarez, supra. The papers submitted in support of and in opposition to a summary judgment motion should be scrutinized in a light most favorable to the party opposing the motion. Dowsey v. Megerlan, 121 AD2d 497, 503 N.Y.S.2d 591 (2d Dept. 1986); Gitlin v. Chirkin, 98 AD3d 561, 949 N.Y.S.2d 712 (2d Dept. 2012). As summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of a triable issue of fact, or where a material issue of fact is even "arguable", the motion must be denied. Phillips v. Kantok & Co., 31 NY2d 307, 338 N.Y.S.2d 882 (1982); Andre, supra.

"[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." Plazas v. Sherlock, 228 AD3d 787, 787-788, 213 N.Y.S.3d 168 (2d Dept. 2024) (internal citations omitted) (brackets added). To be entitled to summary judgment on the issue of liability, "a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault." E.B., 208 AD3d at 618 (internal citations and quotations omitted).

"[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se." Id. at 619 (internal citations and quotations omitted) (brackets added). "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." Id. at 619 (internal citations and quotations omitted). Additionally, generally a driver has a duty to exercise reasonable care under the circumstances to avoid an accident. See Shui-Kwan Lui v. Serrone, 103 AD3d 620, 959 N.Y.S.2d 270 (2d Dept. 2013).

In the instant motion, Plaintiffs argue that Defendants undisputably breached a duty of care owed to Plaintiffs, under VTL § 1146, which provides in relevant part:

(a) Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary. For the purposes of this section, the term "domestic animal" shall mean domesticated sheep, cattle, and goats which are under the supervision and control of a pedestrian. . .

(b) If such driver of a motor vehicle causes physical injury while failing to exercise due care in violation of subdivision (a) of this section, then there shall be a rebuttable [*5]presumption that, as a result of such failure to exercise due care, such person operated the motor vehicle in a manner that caused such physical injury . . .

Defendant does not dispute the duty of care that was clearly owed to Plaintiff under VTL § 1146. In opposition, Defendants argue that issues of fact remain surrounding A.P.'s actions at the time of the accident including, inter alia, whether he knew he was required to stop at the intersection and whether he knew the dump truck was turning since he was aware of it prior to entering the crosswalk; and whether there was any negligence which precludes an award of summary judgment on liability and grants summary judgment to Defendants. In support of their cross-motion for summary judgment, Defendants argue that A.P. violated, inter alia, VTL § 1231 by not stopping when he saw Defendant Halk having already began to turn and that such negligence was the sole proximate cause of the accident. While the Court agrees with Defendant that under VTL § 1231 bicyclists are subject to all the duties of a driver, the Court is not persuaded Defendants' argument. Based on a review of the video surveillance of the accident, this argument holds no merit with the Court as the video demonstrates that A.P. was in the crosswalk before the dump truck began to turn right.

The Court now turns to whether Defendant Halk, in failing to see A.P. before striking him, violated VTL § 1146(a). In Shui-Kwan Lui, the Court held that plaintiff established that defendant was negligent as a matter of law, as he violated VTL § 1146(a), where he admitted to not seeing the infant who was riding a bicycle at the intersection, and struck her as he made his right turn. Id at 620. Likewise, in Smith v. State, 121 AD3d 1358, 1359, 995 N.Y.S.2d 329 (3d Dept. 2014), the claimant established that defendant violated VTL § 1146(a), where defendant testified that he never saw claimant until the moment of impact, along with evidence regarding the ample sight distance at the intersection, and his failure to exercise due care to avoid a collision. See also Rose v. Paulino, 123 AD3d 899, 999 N.Y.S.2d 141 (2d Dept. 2014) (plaintiff established her entitlement on the issue of liability by demonstrating that while she was crossing the street, she was struck by the defendant's vehicle, and defendant admitted that he failed to look at the entire crosswalk and did not see plaintiff at any time before the accident.); Bush v. Kovacevic, 140 AD3d 1651, 33 N.Y.S.3d 623 (4th Dept. 2016) (plaintiff established her prima facie entitlement to judgment as a matter of law on the issues of defendant's negligence and proximate cause by establishing that she was crossing the street within the crosswalk when she was struck by defendant's vehicle.)

Here, there is no dispute that A.P. was in the crosswalk when he was struck by the dump truck. However, there is a dispute with respect to whether A.P. was already in the crosswalk when Halk began to make the turn or whether A.P. entered the crosswalk after he saw the dump truck begin to turn. A review of both the surveillance video and the dash camera on the dump truck clearly show that A.P. entered the crosswalk first and was in the middle of the crosswalk when he was hit by the dump truck. NYSCEF Docs. 29, 37. The Court finds Defendants' argument that A.P. entered the crosswalk after Defendant began his turn unpersuasive as the surveillance video demonstrates otherwise.^FN1 Where recollection and opinion testimony is "utterly [*6]refuted by the video evidence", such is insufficient to withstand summary judgment. Green v. South Colonie Central School Distr., 81 AD3d 1139, 1141, 916 N.Y.S.2d 345 (2d Dept. 2011) (internal citations and quotations omitted). Furthermore, Defendant Halk admits to not seeing A.P. at any time before he struck him. NYSCEF Doc. 47. Given that A.P. was in the crosswalk prior to Defendant Halk's turn and there being no indication that the driver's view was obstructed, Plaintiffs demonstrated that Halk was negligent in failing to see what there was to be seen and in making a turn before it was reasonably safe to do so. See Kruter, 210 AD3d at 672 (internal citations and quotations omitted).

Based on the foregoing, the Court finds that Defendant violated VTL § 1146(a) in that he failed to exercise due care to avoid colliding with a pedestrian. Additionally, the Court finds that this violation of VTL § 1146(a) was a proximate cause of the accident. As such, Plaintiffs have demonstrated their prima facie entitlement to judgment as a matter of law. In opposition, Defendants failed to raise a triable issue of fact given the video evidence of the accident occurring.^FN2 As such, the Court grants summary judgment on the basis of liability (Motion #1). Further, based on the foregoing, the Court denies Defendants' cross-motion for summary judgment (Motion #2).

The Court now turns to Plaintiffs motion to dismiss the First Affirmative Defense alleging culpable conduct by Plaintiff and Second Affirmative Defense asserting assumption of risk. Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." CPLR § 3211(b) (brackets added). Defendants do not oppose the dismissal of these affirmative defenses and, as such, they are hereby dismissed.

Accordingly, it is hereby

ORDERED that Plaintiffs Notice of Motion (Motion #1) for an Order granting summary judgment in favor of Plaintiffs on the issue of liability is GRANTED; and it is further

ORDERED that Plaintiffs Notice of Motion (Motion #1) for an Order dismissing the First Affirmative Defense (culpable conduct) and the Second Affirmative Defense (assumption of risk) is GRANTED; and it is further

ORDERED that Defendants' Notice of Cross-Motion (Motion #2), for an Order (i) denying Plaintiff's motion for summary judgment and (ii) granting summary judgment in favor of Defendants' is DENIED in its entirety; and it is further

ORDERED that this matter is scheduled for a Compliance Conference on November 21, 2025, at 10:30 a.m., in person.

The foregoing constitutes the Decision & Order of the Court on Motions #1 and 2.

Dated: November 6, 2025

New City, New York

HON. RACHEL E. TANGUAY, J.S.C.