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PLAINTIFF BICYCLIST STRUCK THE DOOR OF DEFENDANT’S VAN AFTER DEFENDANT HAD OPENED THE DOOR; DEFENDANT RAISED QUESTIONS OF FACT ABOUT WHETHER HE HAD OPENED THE DOOR SAFELY AND WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED AND DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bicyclist’s motion for summary judgment in this traffic accident case should not have been granted. Plaintiff alleged defendant, Stewart, opened the door of his van and plaintiff could not avoid striking the door. Stewart raised questions of fact about whether he was negligent and whether plaintiff was comparatively negligent:

The assertions made in Stewart’s affidavit, if credited, would support a finding that the plaintiff was riding his bicycle close to the parked vehicles, at a relatively high rate of speed, and possibly under the influence of alcohol, and he failed to perceive and avoid the van door, which had been open for as long as five seconds … .

… Stewart averred that, before opening the van door, he looked in his side-view mirror, where he was able to see the entire northbound lane for approximately 200 feet behind him, and he saw nothing approaching. Approximately five seconds later, the plaintiff’s bicycle collided with the van door. These averments were sufficient to raise a triable issue of fact as to whether Stewart failed to see what, by the reasonable use of his senses, he should have seen, and whether he opened the van door when it was not reasonably safe to do so … . Tucubal v National Express Tr. Corp., 2022 NY Slip Op 05731, Second Dept 10-12-22

Practice Point: In a traffic accident case, at the summary judgment stage, if defendant raises questions of fact about whether he/she was negligent and whether plaintiff was negligent, summary judgment should not be granted to plaintiff and the comparative negligence affirmative defense should not be dismissed.

 

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IN A CONSTRUCTION CONTRACT TRIAL, IT IS IMPROPER TO DETERMINE ADDITIONAL LABOR... THE AFFIDAVITS SUBMITTED BY PLAINTIFF BANK IN THIS FORECLOSURE ACTION FAILED...