Supreme Court, Richmond County

Decided on February 20, 2026

Index No. 152818/2024

Ronald Castorina, Jr., J.

[*1]

I. Statement Pursuant to CPLR 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 32-51 were read and considered on Plaintiff's motion for summary judgment pursuant to CPLR § 3212 on the issue of liability, and for an order pursuant to CPLR § 3211 [b] striking Defendants' First, Fourth, and Fifth Affirmative Defenses:

Notice of Motion (NY St Cts Filing [NYSCEF] Doc No. 32); Affirmation in Support (NY St Cts Filing [NYSCEF] Doc No. 33) and Exhibits annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 34-44); Affirmation in Opposition and Exhibits annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 47-48); Affirmation in Reply (NY St Cts Filing [NYSCEF] Doc No. 49); and all pleadings and proceedings heretofore had herein.

II. Procedural History

This action was commenced by Plaintiff Viviane De Souza Schachner by the filing of a Summons and Verified Complaint on or about December 20, 2024, seeking to recover damages for personal injuries allegedly sustained as a result of a motor vehicle collision occurring on May 15, 2024, on Corson Avenue in Staten Island, Richmond County, New York. (NY St Cts Filing [NYSCEF] Doc No. 34). Defendants thereafter interposed a Verified Answer on or about March 24, 2025, admitting ownership and operation of the subject vehicle while asserting various affirmative defenses, including assumption of risk, culpable conduct including comparative negligence, and emergency doctrine. (NY St Cts Filing [NYSCEF] Doc No. 35).

Thereafter, Plaintiff served a Verified Bill of Particulars and Supplemental Bill of Particulars. (NY St Cts Filing [NYSCEF] Doc Nos. 36; 40). Both Plaintiff and Defendant Francisco J. Toledo Stoykov appeared for Examinations Before Trial, and their sworn deposition testimony forms a central component of the evidentiary record now before this Court. (NY St Cts Filing [NYSCEF] Doc Nos. 39; 43).

Plaintiff now moves for summary judgment on the issue of liability pursuant to CPLR § 3212 and seeks dismissal of Defendants' First, Fourth, and Fifth Affirmative Defenses pursuant to CPLR § 3211 [b].

III. Findings of Fact

Upon careful review of the evidentiary record, including deposition testimony, documentary exhibits, and sworn affirmations, the Court finds the following facts to be established for purposes of this motion.

A. The Physical Configuration of the Roadway

Corson Avenue, the location of the subject occurrence, is a one-way street consisting of a single lane of moving traffic, with designated parking lanes on both sides of the roadway. (NY St [*2]Cts Filing [NYSCEF] Doc No. 39 at pages 43-44). Numerous vehicles were parked along the roadway at the time of the occurrence. (see id at page 49). The roadway was unobstructed, and there were no environmental or physical conditions identified which impaired visibility or rendered the roadway unsafe for ordinary travel. (see id at pages 49-50; (NY St Cts Filing [NYSCEF] Doc No. 43 at page 32).

B. Plaintiff's Operation of Her Vehicle

On May 15, 2024, at approximately 6:30 a.m., Plaintiff was operating her motor vehicle, a 2014 Nissan Pathfinder, traveling along Corson Avenue within the designated lane of moving traffic. (NY St Cts Filing [NYSCEF] Doc No. 39 at page 28; 36; 42). Plaintiff testified under oath that she was traveling straight ahead within her lane of travel at a speed of approximately ten to fifteen miles per hour. (see id at page 51). She testified that she maintained both hands upon the steering wheel, was looking straight ahead, and was operating her vehicle in a lawful and prudent manner consistent with ordinary roadway travel. (see id at pages 50-51)

Plaintiff testified unequivocally that she did not observe Defendants' vehicle moving into the roadway prior to the collision. (see id). Plaintiff testified that there were parked vehicles situated along the roadway, but she did not observe any vehicle exiting from a parked position prior to the moment of impact. (see id at pages 51-52). Plaintiff testified that she first became aware of the occurrence only upon experiencing a sudden and unexpected impact to the driver's side of her vehicle. (see id at page 50; 52).

Plaintiff further testified that following the impact, she observed visible physical damage to the driver's side door and rear driver's side of her vehicle, including dents and scratches. (see id at pages 55-58). Plaintiff also observed damage to the front passenger side of Defendants' vehicle, consistent with the point of impact. (see id at pages 68-69). Plaintiff identified photographic exhibits depicting the location of the occurrence and the damage sustained by both vehicles and confirmed that said photographs accurately reflected the condition of the vehicles and the accident scene.

C. Defendant's Operation of His Vehicle

Defendant Francisco J. Toledo Stoykov testified under oath that prior to the occurrence, he had parallel parked his vehicle adjacent to the curb on Corson Avenue. (NY St Cts Filing [NYSCEF] Doc No. 43 at page 27-28). Defendant testified that he remained parked in that position for approximately ten minutes while waiting for a coworker. (see id at pages 25-26). Defendant testified that after his coworker entered the front passenger seat of his vehicle, Defendant initiated movement of his vehicle from the parked position into the adjacent lane of moving traffic. (see id at pages 27-30).

Defendant expressly testified that at the moment of impact, he was in the process of moving his vehicle from the parked position into the lane of travel. (see id at pages 29-30). Defendant testified that he began moving his vehicle to his right in order to enter the lane of traffic when the collision occurred. (see id). Defendant further testified that his vehicle was traveling at approximately four to five miles per hour at the time of impact. (see id at page 30).

Critically, Defendant admitted that he did not observe Plaintiff's vehicle at any time prior to the collision. (see id at pages 29-30). Defendant admitted that he did not sound his horn, did not attempt any evasive maneuver, and did not undertake any action to avoid the collision. (see id at [*3]page 31). Defendant further testified that there was nothing obstructing his view of the roadway prior to the occurrence. (see id at page 32). Defendant acknowledged that the front right side of his vehicle made contact with the driver's side of Plaintiff's vehicle. (see id at page 31; 36).

Most significantly, Defendant admitted authoring a written statement contemporaneously with the occurrence in which he stated:

"I was pulling out of a spot and hit Vivian car a 2014 Nissan Pathfinder. I agree to pay for the damages . . ." (see id at pages 52-53).

D. Defendants' Opposition

In opposition, Defendants assert that Plaintiff may have failed to stop at a stop sign and may have been traveling at an excessive rate of speed. (NY St Cts Filing [NYSCEF] Doc No. 47 at ¶4). However, Defendants' evidentiary submissions contain no testimony establishing that Defendant observed Plaintiff's vehicle prior to impact. Defendants' assertions are unsupported by direct evidentiary proof based upon personal knowledge.

IV. Conclusions of Law

A. Summary Judgment Standard and Burden-Shifting Framework

Summary judgment is a procedural device designed to expedite litigation and eliminate from trial those claims which may be resolved as a matter of law. However, because summary judgment deprives a litigant of the right to trial, it may only be granted where the movant establishes entitlement to judgment as a matter of law and demonstrates the absence of any triable issue of fact (seeFriends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980].

Once the movant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring trial (seeZuckerman v City of New York, 49 NY2d 557 [1980].

Conclusory allegations, speculation, or unsupported assertions are insufficient to defeat summary judgment (see id).

B. Defendant Violated Vehicle and Traffic Law §1162

Vehicle and Traffic Law § 1162 provides:

"No person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety."

Defendant admitted under oath that he moved his vehicle from a parked position into the lane of moving traffic and struck Plaintiff's vehicle. Defendant further admitted that he did not observe Plaintiff's vehicle prior to impact.

This admission establishes that Defendant failed to ascertain whether it was safe to enter the lane of traffic, thereby violating VTL § 1162.

Violation of a statutory duty constitutes negligence per se (seeWeiser v Dalbo, 184 AD2d [*4]935 [3d Dept 1992]; Di Mauro v Metro. Suburban Bus Auth., 105 AD2d 236 [2d Dept 1984]; Tomaselli v Goldstein, 104 AD2d 872 [2d Dept 1984]).

C. Defendant Violated Vehicle and Traffic Law § 1143

Vehicle and Traffic Law § 1143 requires that a driver entering a roadway from a parked position yield the right of way to approaching vehicles.

The Appellate Division has consistently held that a driver who enters a lane of moving traffic from a parked position and collides with a vehicle already traveling within that lane is negligent as a matter of law (seeCalandra v Dishotsky, 244 AD2d 376 [2d Dept 1997]; Flores v City of New York, 66 AD3d 599 [1st Dept 2009]; Smalls v Adams, 118 AD3d 693 [2d Dept 2014]; Marcel v Sanders, 123 AD3d 1097 [2d Dept 2014]).

Defendant's admissions establish violation of this statutory duty.

D. Defendant Violated Vehicle and Traffic Law § 1128 [a]

Vehicle and Traffic Law § 1128 [a] provides that a driver shall not move from a lane until such movement can be made safely.

Defendant admitted that he moved his vehicle into the lane of traffic without observing Plaintiff's vehicle.

This constitutes a violation of VTL § 1128 [a] and establishes negligence per se.

E. Defendant's Failure to See What Was There to Be Seen Establishes Negligence

A driver has a duty to see what there is to be seen through proper use of his senses (seeJohnson v Phillips, 261 AD2d 269 [1st Dept 1999], citing DeAngelis v Kirschner, 171 AD2d 593 [1st Dept 1991]).

Defendant admitted that he did not observe Plaintiff's vehicle prior to impact, despite the absence of any visual obstruction.

This failure constitutes negligence as a matter of law.

F. Defendants Failed to Raise a Triable Issue of Fact

Defendants' opposition consists of unsupported speculation regarding Plaintiff's alleged conduct.

Speculation is insufficient to defeat summary judgment (seeZuckerman v City of New York, 49 NY2d 557 [1980].

Defendants failed to present admissible evidence demonstrating any negligence by Plaintiff.

G. Comparative Fault Does Not Bar Summary Judgment

Even assuming arguendo comparative fault existed, Plaintiff would nevertheless be entitled to summary judgment.

A plaintiff is not required to demonstrate freedom from comparative fault to obtain summary judgment on liability (seeRodriguez v City of New York, 31 NY3d 312 [2018].

H. Affirmative Defenses Must Be Stricken

The doctrine of assumption of risk does not apply to motor vehicle accidents (seeCustodi v Town of Amherst, 20 NY3d 83 [2012].

Motorists do not assume the risk of another driver's negligence (seePerez v Navarro, 148 AD2d 509 [2d Dept 1989]).

Defendants failed to establish any evidentiary basis for the emergency doctrine.

Accordingly, Defendants' affirmative defenses must be stricken.

V. Conclusion and Decretal Paragraphs

ORDERED, that Plaintiff's motion for summary judgment on the issue of liability is GRANTED; and it is further

ORDERED, that Defendants' First, Fourth, and Fifth Affirmative Defenses are STRICKEN; and it is further

ORDERED, that the issue of damages shall proceed.

This constitutes the Decision and Order of the Court.

Dated: February 20, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT