Lee v. Charles

986 F. Supp. 2d 277, 2013 WL 6415722, 2013 U.S. Dist. LEXIS 157778
CourtDistrict Court, S.D. New York
DecidedNovember 4, 2013
DocketNo. 12 Civ. 7374(JFK)
StatusPublished
Cited by2 cases

This text of 986 F. Supp. 2d 277 (Lee v. Charles) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Charles, 986 F. Supp. 2d 277, 2013 WL 6415722, 2013 U.S. Dist. LEXIS 157778 (S.D.N.Y. 2013).

Opinion

OPINION & ORDER

JOHN F. KEENAN, District Judge:

Before the Court is Plaintiffs motion pursuant to Federal Rule of Civil Procedure 56 for summary judgment on the issue of liability. For the reasons that follow, the motion is granted and summary judgment is entered in favor of Plaintiff on this issue.

I. Background

Plaintiff Amanda Lee alleges that at about 11:20 P.M. on September 18, 2012, she was walking westbound on York Avenue in the north crosswalk at East 68th Street in Manhattan when she was struck by a car making a left turn from East 68th Street into the northbound lane of York Avenue. The car was owned by Defendant John W. Wany and driven by Defendant Joel B. Charles. Plaintiff further asserts that she had the walk signal, and that she looked both ways before crossing the street. She claims that she sustained a “serious injury” as defined in New York Insurance Law § 5102(d), and seeks $1 million plus interest, fees, and costs. In support of her summary judgment motion, [278]*278Plaintiff has filed, among other things, a Rule 56.1 statement and a copy of the Police Accident Report prepared by the responding officer.

Defendants1 oppose summary judgment. They argue that an issue of fact exists as to whether Plaintiff was within the crosswalk when Defendant Charles hit her. The basis for this contention is a sworn declaration by Charles submitted contemporaneously with Defendants’ opposition papers, which states in relevant part: “I have been advised by my attorney that Amanda Lee claims she was crossing the street in a pedestrian crosswalk when the incident occurred. This is not correct; Amanda Lee was not in the pedestrian crosswalk when the incident with my vehicle occurred.” (Charles Dec. ¶ 11.) According to Defendants, Charles’s account raises a material issue of fact as to how the accident occurred, and also introduces the possibility that Plaintiff was comparatively negligent.

II. Discussion

A. Legal Standard

Summary judgment is warranted when “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996). The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Additionally, Local Civil Rule 56.1 requires the movant to file a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. Rule 56.1(a).

The party opposing summary judgment must present affirmative evidence in order to defeat a properly supported motion. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. “Factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir.1996); see also Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir.2000) (“[I]n opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a triable issue merely by submitting his affidavit denying the fact.”). Finally, facts set forth in the movant’s Rule 56.1 statement are deemed admitted “unless specifically controverted by a correspondingly numbered paragraph in the statement to be served by the opposing party.” Local Rule 56.1(c); see, e.g., Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003).

[279]*279The parties agree that the laws of New York govern the instant case. In New York, the Vehicle and Traffic Law (the ‘VTL”) establishes rules of conduct that must be obeyed by motorists and pedestrians, and a violation of the VTL constitutes negligence per se. See, e.g., McConnell v. Nabozny, 110 A.D.2d 1060, 489 N.Y.S.2d 24, 24 (4th Dep’t 1985); N.Y. Pattern Jury Instr. 2:26 (3d ed.2013).

New York VTL § 1112(a) provides that, in an intersection containing pedestrian control signals, pedestrians facing a “walk” indicator or graphic “may proceed across the roadway in the direction of the signal and shall be given the right of way by other traffic.” See also N.Y. Pattern Jury Instr. 2:75 cmt. Accordingly, a plaintiff seeking summary judgment on the issue of Lability must “submit evidence that shows while crossing the street, within the crosswalk, and the pedestrian signal in his favor, that the defendant driver violated Vehicle and Traffic Law § 1112(a) and that the plaintiff was free from comparative negligence.” Ljekperic v. Durst, 38 Misc.3d 1207(A), 966 N.Y.S.2d 347, 2013 WL 69251 (N.Y.Sup.Ct.2013) (citing Klee v. Americas Best Bottling Co., Inc., 60 A.D.3d 911, 875 N.Y.S.2d 270 (2d Dep’t 2009)).

Additionally, New York has expressed the public policy “that all motor vehicle owners should be liable for the actions of an operator driving the vehicle with consent.” Green v. Toyota Motor Credit-Corp., 605 F.Supp.2d 430 (E.D.N.Y.2009). That policy is articulated in VTL § 388, which states in relevant part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle ... by any person using or operating the same with the permission, express or implied, of such owner.

VTL § 388(1).

B. Analysis

On the admissible evidence before the Court, it is appropriate to enter summary judgment for Plaintiff on the issue of liability. Plaintiffs sworn declaration, Rule 56.1 statement, and deposition testimony all aver that she had a walk signal and looked both ways before beginning to cross York Avenue in the north crosswalk at East 68th Street. Under these circumstances, it was per se negligent for Defendant Charles to collide into her with Defendant Wany’s vehicle. See McConnell, 489 N.Y.S.2d at 24; see also Perez-Hernandez v. M. Marte Auto Corp., 104 A.D.3d 489, 961 N.Y.S.2d 384, 385 (1st Dep’t 2013).

Moreover, Defendants have failed genuinely to dispute the facts as asserted by Plaintiff. First, they failed to file a Rule 56.1 counterstatement or otherwise present affirmative evidence that contradicts Plaintiffs account. The contentions contained in Plaintiffs Rule 56.1 statement are therefore properly deemed admitted. Local Rule 56.1(c).

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986 F. Supp. 2d 277, 2013 WL 6415722, 2013 U.S. Dist. LEXIS 157778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-charles-nysd-2013.