Jian Xun Liang v. Vanegas

• Decision Date: 28 November 2011
• Docket Number: Motion Seq. No.: 03,Motion Seq. No.: 02,Index No.: 2833/10
• Parties: JIAN XUN LIANG, Plaintiff, v. MYRIAM VANEGAS, Defendant.
• Court: New York Supreme Court

2011 NY Slip Op 33127

JIAN XUN LIANG, Plaintiff,
v.
MYRIAM VANEGAS, Defendant.

Index No.: 2833/10
Motion Seq. No.: 02
Motion Seq. No.: 03

SUPREME COURT OF THE STATE OF NEW YORK TRIAL/IAS PART 32 NASSAU COUNTY

November 28, 2011

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER
Acting Supreme Court Justice

Motion Dates: 07/05/11
07/28/11
XXX

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                ¦The following papers have been read on these motions: ¦ ¦
                +------------------------------------------------------------+---------------¦
                ¦ ¦Papers Numbered¦
                +------------------------------------------------------------+---------------¦
                ¦Notice of Motion (Seq. No. 02), Affirmation and Exhibits ¦1 ¦
                +------------------------------------------------------------+---------------¦
                ¦Notice of Motion (Seq. No. 031 Affirmation and Exhibits ¦2 ¦
                +------------------------------------------------------------+---------------¦
                ¦Affirmation in Opposition to Motion Seq. No. 02 and Exhibits¦3 ¦
                +------------------------------------------------------------+---------------¦
                ¦Affirmation in Opposition to Motion Sea. No. 03 ¦4 ¦
                +------------------------------------------------------------+---------------¦
                ¦Reply Affirmation to Motion Seq. No. 02 ¦5 ¦
                +------------------------------------------------------------+---------------¦
                ¦Reply Affirmation to Motion Seq. No. 03 ¦6 ¦
                +----------------------------------------------------------------------------+
                

Upon the foregoing papers, it is ordered that the motions are decided as follows:

Defendant moves (Seq. No. 02), pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendant's motion.

Plaintiff moves (Seq. No. 03), pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendant. Defendant opposes the motion.

This action arises from a motor vehicle accident which occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood

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Boulevard, Elmont, Nassau County, New York. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claims that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claims that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant's vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced this action by the filing and service of a Summons and Verified Complaint on or about August 26, 2009. Issue was joined on or about October 26, 2009.

In her motion for partial summary judgment (Seq. No. 03), plaintiff argues that defendant was negligent per se in violating New York State Vehicle and Traffic Law §§ 1146 and 1111(a)(1) and (3) by failing to keep a proper lookout, failing to see what was there to be seen and failing to use due care to avoid hitting a pedestrian. Plaintiff submits that "[a] pedestrian must be granted summary judgment if the plaintiff demonstrates that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendant's car failed to yield the right of way and struck her, and that the plaintiff exercised due care by looking to check for approaching vehicles before entering the intersection. Martinez v. Kreychmar, 84 A.D.3d 1037, 923 N.Y.S.2d 648 (2d Dept. 2011)." In support of her motion, plaintiff offers the Affidavit of Shawn Johnson, who witnessed the subject accident. See Plaintiff's Affirmation in Support Exhibit E. Mr. Johnson states, "[o]n January 30, 2008, at approximately 8:11 a.m., I was a pedestrian on the corner of Locustwood Blvd. and Hempstead Turnpike, preparing to cross Hempstead Turnpike in a northbound direction. An Asian woman, Ms. Jian-Xun Liang, was

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crossing the street next to me in the same direction. As Ms. Liang was crossing the street with the green light in her favor, a gray compact, 4-door car made a sharp left turn from Locustwood Blvd. and hit Ms. Liang as she was walking in the crosswalk next to me."

In opposition to plaintiff's motion, defendant argues that "[p]laintiff pedestrian stated that she never saw the defendant's vehicle prior to the accident. Defendant testified that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment." Defendant testified at her Examination Before Trial ("EBT") that she observed plaintiff and a male pedestrian cross the street in front of her and, after plaintiff had crossed in front of her, the wind caught plaintiff's umbrella, turned it inside out, causing plaintiff to walk backwards into defendant's vehicle. See Plaintiff's Affirmation in Support Exhibit D. Defendant further argues that the Affidavit of witness Shawn Johnson states that he was next to plaintiff at the time of the accident. Defendant stated at her EBT that the witness was behind the plaintiff. Defendant submits that plaintiff testified at her EBT that the witness was walking in front of her. Consequently, defendant claims that there is an issue of fact as to whether the witness actually saw the accident because, if he was in front of plaintiff, he would not have observed the accident take place. Defendant contends that plaintiff and defendant set forth two different versions as to how the accident occurred and that summary judgment is routinely denied in cases where the parties give conflicting testimony. Defendant adds that plaintiff testified that she did not see defendant's vehicle prior to the accident and that plaintiff's failure to observe defendant's vehicle prior to the accident raised an issue of fact as to plaintiff's comparative negligence.

In reply to defendant's opposition, plaintiff submits that "[d]efendant's opposition argues

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that there is an issue of fact with respect to whether the wind, turning plaintiff's umbrella inside out, caused plaintiff to walk backwards into the defendant's vehicle. The plaintiff, however, testified that the umbrella was a small, one-person umbrella, and that it did not blow inside out at the time of the accident....Therefore, the umbrella was not the cause of the accident. The witness stated that he witnessed the defendant's vehicle make a sharp left turn and hit the plaintiff as she was walking in the crosswalk....The witness made no mention of an umbrella as a contributing factor to the accident. Except for the defendant's self-serving statement that plaintiff's umbrella opened, there is no other testimony or evidence to support that assertion. Clearly, this accident was caused by the defendant's failure to use reasonable care to avoid hitting the plaintiff."

Plaintiff further argues that the witness attested that he witnessed the accident, therefore, defendant's claim regarding the position of the witness in relation to plaintiff is insignificant and insufficient to overcome defendant's burden to create an issue of fact. Plaintiff adds that she fulfilled her obligation of looking before crossing inside a crosswalk with a green pedestrian signal and, therefore, was not comparatively negligent.

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985). If a sufficient prima

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facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of...