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PLAINTIFF BICYCLIST’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; BUT PLAINTIFF’S MOTION TO DISMISS DEFENDANT DRIVER’S CONTRIBUTORY NEGLIGENCE AFFIRMATIVE DEFENSE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist’s motion for summary judgment on liability in this traffic accident case should have been granted. However, plaintiff’s motion to dismiss defendant’s contributory negligence affirmative defense was properly denied. Defendant suddenly backed up in and attempt to parallel park and struck plaintiff. The court noted that Supreme Court properly refused to consider an uncertified police report submitted by defendant in opposition to summary judgment:

The plaintiff … demonstrated that the defendant reversed her vehicle on the roadway “without taking proper precautions” in violation of Vehicle and Traffic Law § 1211(a) … . In opposition, the defendant failed to raise a triable issue of fact. “The defendant did not submit an affidavit describing the events surrounding the accident which rebutted the version of events presented in the plaintiff’s affidavit” … . Further, “[c]ontrary to the defendant[‘s] contention, the [Supreme Court] properly declined to consider a particular uncertified police accident report in determining the motion as it would have provided the sole basis for denying summary judgment” …

“With few exceptions . . . , a person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle” (… Vehicle and Traffic Law § 1231). Therefore, “[a] bicyclist is required,” inter alia, “to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . Dieubon v Moore, 2024 NY Slip Op 03881, Second Dept 7-24-24

Practice Point: Backing up without taking precautions violates the Vehicle and Traffic Law and constitutes negligence per se.

Practice Point: A bicyclist must use reasonable care for his or her safety and may therefore be contributorily negligent in a car-bicycle collision.

 

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