Zhong v. Matranga

• Decision Date: 30 August 2022
• Docket Number: 16078,Index No. 150823/17,Case No. 2021-04488
• Citation: 208 A.D.3d 439,173 N.Y.S.3d 238
• Parties: Min ZHONG, Plaintiff–Respondent, v. Peter J. MATRANGA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 439

173 N.Y.S.3d 238

Min ZHONG, Plaintiff–Respondent,

v.Peter J. MATRANGA, Defendant–Appellant.

16078

Index No. 150823/17

Case No. 2021-04488

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

Entered August 30, 2022

Law Office of Kevin J. Philbin, New York (Arlene E. Lewis of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco LLP, New York (Joshua Block of counsel), for respondent.

Renwick, J.P., Oing, Moulton, Kennedy, Mendez, JJ.

Order, Supreme Court, New York County (Alexander Tisch, J.), entered on or about October 27, 2021, which denied defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion granted, and the complaint dismissed.The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover for personal injuries she sustained when defendant, who was riding a bicycle within a marked bicycle lane with the light in his favor, collided with her after she suddenly stepped off the curb directly into his path.After completion of discovery, defendant moved for summary judgment dismissing the complaint.The parties submitted, in support of and in opposition to the motion, their deposition testimony, a copy of a video of the intersection that captured the incident, copies of the video stills, expert affidavits and an affidavit by defendant.Supreme Court denied the motion, and we now reverse, as defendant established prima facie entitlement to summary judgment and plaintiff failed to raise an issue of fact.

The video shows that immediately prior to the incident, the traffic light controlling the intersection is red for traffic on First Avenue and green for traffic on East 91st Street.A pedestrian and three bicyclists (other than defendant) are stopped on the southwestern side of the intersection waiting for the traffic light to change.When the light for traffic on First Avenue changes to green, the pedestrian crosses East 91st Street to the northwestern side, comes to the corner, faces the direction of First Avenue as if to go across it, and stops.The three bicyclists stop for the red light on the southwestern side of East 91st Street and First Avenue, accelerate their bicycles from the stopped position, and gradually pick up speed as they approach and pass the northwestern side of the intersection.

The video then shows plaintiff, towing a suitcase on wheels, exiting a building on the northwestern side of East 91st Street and proceeding to its intersection with First Avenue.As plaintiff approaches First Avenue, the other pedestrian, who had already crossed the street, has already reached the northwestern corner and is stopped facing vehicular traffic and a red signal for pedestrians crossing on First Avenue.The pedestrian looks both ways, first looking to the right as defendant, on his own bicycle, enters the screen from the right and is seen approaching the middle of the intersection.The pedestrian then looks to the left as plaintiff, who has just reached the intersection with First Avenue, continues walking at a fast pace, and without stopping or looking to the left or right, steps off the sidewalk and into the bicycle's path, where the collision occurs.

Defendant testified, consistent with the video, that he had the right-of-way and was riding his bicycle under the speed limit.According to the testimony, plaintiff was about 6 to 10 feet in front of defendant when she stepped off the curb while wheeling a bag.Defendant testified that when plaintiff took two steps into the bicycle lane, he"immediately braked and yelled ‘watch out,’ " and approximately two seconds later, collided with her in the middle of the bicycle lane.He"didn't have time" to stop, change lanes or go around plaintiff; jamming on the brakes and yelling was "the only thing [he] could do" in the time he had to react.

Plaintiff admitted that she entered the bicycle lane against the red traffic signal for pedestrian traffic.However, the video contradicts her statement that she looked right and left to check for any traffic before stepping off the curb.She stated she did not see any bicycle coming towards her and did not remember defendant's bicycle striking her.She did remember, consistent with defendant's version of the incident, hearing someone yell "watch out" in a voice she described as "very loud and very, very, close ... almost next to [her][right] ear."

There is no conflicting evidence regarding defendant's speed as both experts opined that defendant was traveling at a speed of approximately 14 miles per hour.

Defendant's expert performed a site inspection and an analysis of bicycle traffic at the intersection; that inspection revealed that the average speed of the bicyclists riding through the intersection was 13.8 miles per hour with a range of 7.6 to 22.0 miles per hour.The expert opined that defendant was not negligent, as he was proceeding on First Avenue at a calculated speed of 14.1 miles per hour, which was a reasonable speed and well within the 25 mile per hour speed limit.The expert further opined that defendant had the right-of-way and collided with plaintiff when she suddenly stepped off the curb less than ten feet in front of him and into the path of his bicycle, leaving defendant with no time to react or to maneuver to avoid striking her.He also concluded that although defendant applied his brakes and slowed down there was not enough time for him to stop because the distance was too short.Similarly, the expert posited, defendant had no time to make an evasive maneuver without putting himself or other pedestrians at risk.The expert noted that if defendant had made an evasive maneuver to the right, he would have risked colliding with the concrete median or unexpectedly moving into the left most travel lane for vehicular traffic.Likewise, if defendant had made an evasive maneuver to the left, he would have risked colliding with the curb, the light pole, and other pedestrians.

Plaintiff's expert admitted that plaintiff entered the marked bicycle lane against a red light for pedestrian traffic.Nonetheless, he opined even if defendant was traveling under the speed limit, he was still negligent because he was traveling much faster than the three other bicyclists seen in the video.Plaintiff's expert calculated that in the three seconds between defendant's appearance in the video and the impact, his speed was 14.3 miles per hour—much faster than the three other bicyclists, whose speed he calculated at approximately 8 to 10 miles per hour.Plaintiff's expert states in a conclusory manner, "[i]n traveling at an excessive and unreasonable rate of speed compared to the prevailing bicycle traffic, defendant failed to have regard for the actual, or even potential, hazards of New York Citypedestrian traffic in violation of Vehicle Traffic Law and § 1180."He further opines in a conclusory manner,

"from the time that plaintiff first entered the bicycle lane, until the time she was struck, there was ample amount of time for the defendant to observe and avoid the pedestrian by slowing down, stopping, or exercising control to maneuver his bicycle to go around her.Had the defendant done any of those things, the collision would not have occurred, or the impact would have been substantially less severe.Not doing so was a failure to exercise due care in violation of NYS [Vehicle and Traffic Law] § 1146(a)."

It is important to note that plaintiff's expert does not state in his affidavit that he performed an analysis of bicycle traffic to determine the average speed of bicyclists riding through the intersection.He reaches his conclusion that defendant was traveling at an excessive rate of speed solely by comparing his speed to that of the three other bicyclists seen in the video, who were accelerating from a stopped position, unlike defendant.However, according to defendant's expert, a bicyclist's speed while decelerating from a stopped position does not reflect the bicyclist's cruising speed.There are no other facts in the record to support plaintiff's expert's conclusions.

Defendant made a prima facie case for summary judgment, as the evidence submitted established that he was not negligent.It is undisputed that the light was red for plaintiff and pedestrians crossing First Avenue at the intersection of East 91st Street and green for moving traffic on First Avenue when plaintiff, without warning and without looking in the direction of oncoming bicycle traffic, walked into the path of defendant's bicycle, leaving defendant unable to avoid striking her (seeRosa v. Scheiber,89 A.D.3d 827, 827, 932 N.Y.S.2d 349[2d Dept.2011];Brown v. Muniz,61 A.D.3d 526, 527, 878 N.Y.S.2d 683[1st Dept.2009];lv denied13 N.Y.3d 715, 2010 WL 118259[2010], 895 N.Y.S.2d 315, 922 N.E.2d 904 ).It is also undisputed that defendant, with the green light in his favor, was riding his bicycle within the marked bicycle lane, almost 11 miles per hour under the posted speed limit of 25 miles per hour, within the average cruising speed for bicycle traffic proceeding through the intersection, and in a prudent, non-negligent manner given the traffic and pedestrian conditions (seeFatumata B. v. Pioneer Transp. Corp.,118 A.D.3d 486, 486, 988 N.Y.S.2d 31[1st Dept.2014] ).Defendant was left with no time to react, stop, or maneuver around plaintiff to avoid striking her when she darted out approximately 6 to 10 feet in front of him.Indeed, although defendant applied the brakes in an attempt to bring the bicycle to a stop, he struck her less than two seconds after she walked into the middle of the bicycle lane and the path of the moving bicycle (seePripkhan v. Karmon,140 A.D.3d 634, 635, 34 N.Y.S.3d 449[1st Dept.2016];Ramirez v. Molina,114 A.D.3d 540, 540, 980 N.Y.S.2d 433[1st Dept.2014] ).

There is only one version of the accident: the one shown in the video, described in defendant's testimony, and corroborated by plaintiff....