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PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide… . Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … .

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)… . The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Harth v Reyes, 2017 NY Slip Op 05204, 2nd Dept 6-28-17

 

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