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Question of Fact Raised About Defendant’s Comparative Negligence in Striking a Bicyclist Travelling the Wrong Way on a One-Way Street

The Second Department reversed Supreme Court’s grant of summary judgment to the defendant in a bicycle-vehicle collision action.  The bicyclist was traveling the wrong way on a one-way street and the collision occurred in an intersection after defendant had stopped at a stop sign before entering the intersection.  Although the bicyclist was negligent as a matter of law, the court determined that a question of fact had been raised about defendant’s failure to see what was there to be seen (comparative negligence):

… [T]he defendant failed to make a prima facie showing that she was free from comparative fault in the happening of the accident … . When asked at her deposition when she first saw the plaintiff’s bicycle, she responded “I saw an object. As I was — I stopped. And then as I proceeded to cross the intersection, I felt something. And I saw an object.” This testimony demonstrated the existence of triable issues of fact exist regarding whether the defendant failed to see what was there to be seen through the proper use of her senses … and whether she failed to exercise reasonable care to avoid the collision with the plaintiff’s bicycle … . Accordingly, since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . Palmeri v Erricola, 2014 NY Slip Op 07637, 2nd Dept 11-12-14

 

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