The following were read on this motion (Seq. 1) for SUMMARY JUDGMENT ON LIABILITY and THRESHOLD submitted on SEPTEMBER 29, 2023. Notice of Motion — Exhibits and Affidavits Annexed NYSCEF No(s). 5-11, 13-14 Notice of Cross-Motion and Opposition Affidavit and Exhibits NYSCEF No(s). 17-23, 27 Opposition to Cross-Motion and Reply (PI) NYSCEF No(s). 25, 27, 28-30 Reply Affirmation (Def) NYSCEF No(s). 31 Upon the foregoing papers, the Plaintiff moves, pursuant to CPLR 3212 for an order granting summary judgment on the issue of liability against the Defendants Johnny Delgado ["Delgado"] and Airgas USA, LLC ["Airgas"]; granting summary judgment on the issue of serious injury against the Defendants herein; and for such other relief as this Court deems just and proper. Defendants oppose and cross-move pursuant CPLR 3212, for an order granting summary judgment in favor of the Defendants, under VTL §§114-e, 1129,(a), and 1180(a); dismissing Plaintiffs complaint against the defendants with prejudice; finding the plaintiff to be sole proximate cause of the accident; and for such other and further as to this Court deems just and proper. The motions are decided in accordance with this single decision and order. This action arises from a motor vehicle accident which occurred on September 4, 2022, in New York, New York. Plaintiff alleges that the vehicle, owned by Airgas and operated by Johnny Delgado, made an illegal U-turn, crossed the double yellow line, and blocked his path causing a collision with his electric scooter ["e-scooter"]. 1. Liability In support of this motion, Plaintiff submits, inter alia, the pleadings, his affidavit, and an uncertified Police Accident report; and Hospital Records.. Plaintiff states he was riding an E-scooter and traveling eastbound on East 14th Street when Delgado’s vehicle crossed over the double yellow line to make an illegal U-turn and obstructed his path causing the subject collision. Plaintiff’s Counsel argues that the Defendants are negligent per se as Delgado’s U-turn violated several sections of the VTL, Counsel argues that Plaintiff is not negligent and requests that the Court strike Defendants’ affirmative defense of culpable conduct. In support of their opposition and cross-motion, Defendants submits the pleadings; Delgado’s affidavit and an attorney’s affirmation. Delgado states his vehicle was facing eastbound and the accident occurred as he was attempting to make a three-point turn to proceed westbound on East 14th Street. Delgado states before attempting the maneuver, he turned on his left indicator and checked his left and right sides for oncoming traffic. Delgado states that once the traffic was clear he began to make his three-point turn. Delgado states that after he completed the first part of his three-point turn he stopped. Delgado states he is uncertain if his vehicle crossed the double yellow line. Delgado states that, suddenly and without warning, he felt and heard a loud impact to the left side of his vehicle. Delgado states his vehicle was stopped when the collision occurred. Delgado states he observed the Plaintiff on the ground from his driver’s side mirror. Delgado states he exited his truck and observed that the Plaintiff was not wearing a helmet. Defendants’ Counsel argues there are several issues of fact in this matter. Counsel argues that the parties present conflicting accounts of how the accident occurred. Counsel argues that the Plaintiff followed the Delgado vehicle too closely and struck his vehicle in the rear. Counsel argues that the instant motion is premature as Plaintiff has yet to respond to discovery demands; provide a Bill of Particulars; and appear for depositions. In reply and opposition to the cross-motion, Plaintiff’s Counsel renews his argument that the Defendants are the sole proximate cause of the subject accident, and that Defendants cross-motion should be denied as they are negligent per se. Plaintiff’s Counsel argues that Delgado’s crossing of the double yellow line when he made the illegal U-turn violated New York State and City traffic laws and regulations. In reply to Plaintiff’s opposition to the cross-motion, Defendant’s Counsel renews his arguments against Plaintiff’s motion and in support of the cross-motion. Discussion The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]; see also Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]. A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident. (Fernandez v. Ortiz, 183 AD3d 443 [1st Dept 2020]). Pursuant to NY VTL §1162, “[n]o person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety. VTL §1163 directs that no person shall…”turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal.” Vehicle and Traffic Law §1160 e states, “U-turns shall be made from and to that portion of the highway nearest the marked center line. Where more than one lane of a highway has been designated for left turns, U-turns shall be made only from the lane so designated that is adjacent to the marked center line”. New York City traffic rule 34 RCNY §4-05(b)(2) expressly prohibits U-turns “upon any street outside a business district unless such turn is made without interfering with the right of way of any vehicle or pedestrian.” New York City traffic rule 34 RCNY §4-07(h)(2) further prohibits U-turns “on a divided highway, except where permitted by sign or at the direction of a law enforcement officer.” A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se. Rodriguez v. Budget Rent-A-Car Sys, Inc. 44 AD3d 216 [1st Dept 2007]. Furthermore, an operator, being in the best position to explain whether the collision was due to a reasonable cause, is obligated to explain how the accident occurred. Leal v. Wolff, 224 AD2d 392 [2nd Dept 1996]; see also Guzman v. Schiavone Constr. Co., 4Ad3d 150 [1st Dept 2004]. Here, Plaintiff has met his prima facie showing that Defendant Delgado was negligent per se pursuant to VTL §§1160; 1162 and 1163; and 34 RCNY §§4-05(b)(2) and 4-07(h)(2), as the parties” affidavits demonstrate Delgado’s vehicle pulled from his parked position and into a lane of moving traffic. Ramroop v. Stein, 204 AD3d 452 [1st Dept 2022]. In opposition, Delgado’s affidavit fails to present a non-negligent for the accident. Conversely, Delgado’s explanation that he was attempting a “three-point turn” when the Plaintiff struck his vehicle from the side demonstrates that Delgado’s actions were a proximate cause of the accident. Davis v. Espinalceron, 2022 NY Misc LEXIS 29735 [Sup Ct. Bronx Cty 2022][citations omitted]. Defendants’ Counsel argues that the Plaintiff should be liable for striking Delgado’s vehicle in the rear. However, this argument conflicts with the parties’ description of the accident. Accordingly, Plaintiff’s motion on the issue of liability is granted in his favor; and Defendants’ cross-motion for summary judgment on the issue of liability is denied. 2. Serious Injury Threshold The Court now turns to the issue of “serious injury”, Plaintiff submits the pleadings; uncertified medical records from New York City Health and Hospitals; his affidavit; and an attorney’s affirmation. Plaintiff’s Counsel statement of facts and his affirmation indicates that Plaintiff sustained injuries to his head, cervical spine, right shoulder. Counsel avers that the Plaintiffs medical records are admissible as business records pursuant to CPLR §4518. In opposition. Defendants submit, inter alia, a Demand for a Bill of Particulars. Defendants’ Counsel argues that Plaintiff has failed to meet his burden by submitting his hospital records in inadmissible form. In this matter, as the proponent of a motion for summary judgment, the plaintiff has the burden of making a prima facie showing that he suffered a serious injury pursuant to Insurance Law §5102 (d), and that his injury is causally related to the accident. Dembowski v. Morris, 184 AD3d 742 [2nd Dept 2020]. “To satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests.” Cekic v. Zapata, 2009 NY Slip Op 50838(U) [Sup Ct New York County 2009]. Moreover, the movant meets their burden by submitting evidence in admissible form demonstrating the absence of any triable issues of fact. See Zuckerman v. City of New York, 49 NY2d 557 [1980] see also Perez-Hernandez v. M. Marte Auto Corp., 104 AD3d 489 [1st Dept 2013]. Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact.[Id]. Pursuant to CPLR §4518(c), [a]ll records, writings and other things referred to in sections 2306 and 2307 are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician.” See also Kilroy v. Hall, 2024 NY Misc LEXIS 7787 [Sup Ct Bronx County 2024]. Here, Plaintiff has failed to establish his prima facie entitlement to summary judgment wherein the hospital records submitted does not comply with the statutory requirements of CPLR §4518(c). Moreover, since the Plaintiff failed to meet his prima facie burden as to his claims, the burden does not shift to Defendants on this issue. Pouchie v. Pichardo, 173 AD3d 643 [1st Dept 2019]. Plaintiffs motion for summary judgment on the issue of serious injury is denied. Accordingly, it is hereby; ORDERED, that Plaintiff Felix Gonzalez’s motion for partial summary judgment on the issue of liability is granted in Plaintiff’s favor; and the issue of serious injury threshold is denied as indicated above; and it is further ORDERED, that Defendants’ cross-motion for summary judgment in favor of the Defendants is denied; and it is further ORDERED, that the Clerk shall mark the motion (Seq. No. 1) decided in all court records. This constitutes the Order of the Court. Dated: January 17, 2025
