Lebron v. Mensah

• Decision Date: 16 May 2018
• Docket Number: Index No. 7406/14,2017–04474
• Parties: Teddy LEBRON, Appellant, v. Adu–Tutu MENSAH, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 972

76 N.Y.S.3d 219

Teddy LEBRON, Appellant,

v.Adu–Tutu MENSAH, et al., Respondents.

2017–04474

Index No. 7406/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 30, 2017

May 16, 2018

Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (Joseph P. Stoduto and David M. Schwarz of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondents.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Edwards, J.), dated March 31, 2017, which denied his motion for summary judgment on the issue of liability and, in effect, to dismiss the defendants' affirmative defense alleging comparative negligence.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and, in effect, to dismiss the defendants' affirmative defense alleging comparative negligence is granted.

On May 12, 2014, at the intersection of Fifth Avenue and Park Place in Brooklyn, the plaintiff allegedly was injured when the scooter he was operating came into contact with a yellow taxi operated by the defendant Adu–Tutu Mensah (hereinafter the defendant driver) and owned by the defendant Sinkeria, Inc.

On May 15, 2014, the plaintiff commenced this action to recover damages for personal injures. After discovery, the plaintiff moved for summary judgment on the issue of liability and, in effect, to dismiss the defendants' affirmative defense alleging comparative negligence. In support of the motion, the plaintiff submitted, inter alia, copies of the transcript of his deposition testimony, photographs of the accident scene, the affidavits of nonparty witnesses who either saw the collision or saw the accident scene immediately after the collision occurred, the police accident report, and the defendant driver's MV–104 accident report. According to the evidence submitted by the plaintiff, the accident occurred when the defendants' taxi, traveling in the opposite direction from the plaintiff's scooter, suddenly made a left turn directly into the path of the plaintiff's scooter. The defendant driver stated, in both the police accident report and in the MV–104 accident report, that at the time of the occurrence, he was attempting to make a left turn onto Park Place in the eastbound direction.

In opposition to the motion, the defendants submitted the transcript of the defendant driver's deposition and an affirmation from their attorney. In his deposition, the defendant driver stated that his taxi had not yet entered the intersection and had not begun to make the left turn when the taxi and the plaintiff's scooter came into contact with each other. He also stated that the taxi was facing straight, that no part of it was on or had crossed the double yellow line, and that no part of the plaintiff's scooter was on or had crossed the double yellow line when the contact occurred. The Supreme Court denied the motion, and the plaintiff appeals.

Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard (see Attl v. Spetler, 137 A.D.3d 1176, 28 N.Y.S.3d 699 ; Ducie v. Ippolito, 95 A.D.3d 1067, 1067–1068, 944 N.Y.S.2d 275 ; Ahern v. Lanaia, 85 A.D.3d 696, 924 N.Y.S.2d 802 ). A violation of this statute constitutes negligence per...