Opinion
64 Index No. 21690/19E Case No. 2022-03238
04-18-2023
Eliezer Pena PICHARDO, Plaintiff-Appellant, v. Juan A. IRIZARRY et al., Defendants-Respondents.
Law Offices of Alexander Bespechny, Bronx (Yelena Genchanok of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola (Eric P. Tosca of counsel), for respondents.
Law Offices of Alexander Bespechny, Bronx (Yelena Genchanok of counsel), for appellant.
Kelly, Rode & Kelly, LLP, Mineola (Eric P. Tosca of counsel), for respondents.
Kapnick, J.P., Moulton, Kennedy, Mendez, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered January 21, 2022, which denied plaintiff's motion for partial summary judgment on the issue of liability and dismissing the affirmative defense of comparative fault, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff's reliance on cases involving rear-end collisions is misplaced, since it is undisputed that defendants’ truck did not hit the back of plaintiff's vehicle but bumped into the side of plaintiff's vehicle towards the rear. Defendant driver did not violate Vehicle and Traffic Law § 1129(a), because there is no claim that he was following too closely behind plaintiff's car (see Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] ).
Nevertheless, plaintiff also argued that the accident resulted from defendant driver's unsafe lane change in violation of Vehicle and Traffic Law § 1128(a) ( Davis v. Turner, 132 A.D.3d 603, 603, 20 N.Y.S.3d 2 [1st Dept. 2015] ), and the facts support that argument. Based on the deposition testimony of both drivers and the police accident report, plaintiff met his prima facie burden of establishing that he was lawfully operating his vehicle within the left lane of traffic on Lexington Avenue when defendant truck driver attempted to change from the right lane into the left lane, while in heavy traffic, and struck the rear side of plaintiff's vehicle (see McDaniel v. Codi Transp., Ltd., 149 A.D.3d 595, 595, 50 N.Y.S.3d 286 [1st Dept. 2017] ; Steigelman v. Transervice Lease Corp., 145 A.D.3d 439, 439, 42 N.Y.S.3d 146 [1st Dept. 2016] ). Defendants did not offer any nonnegligent explanation for the collision sufficient to raise an issue of fact ( id. at 440, 42 N.Y.S.3d 146 ). Accordingly, plaintiff was entitled to partial summary judgment on the issue of defendants’ liability (see Silverio v. Ford Motor Co., 168 A.D.3d 608, 90 N.Y.S.3d 894 [1st Dept. 2019] ; Ayala v. Pascarelli, 168 A.D.3d 613, 614, 90 N.Y.S.3d 893 [1st Dept. 2019] ).
Moreover, the evidence submitted in support of the motion demonstrates that plaintiff was not at fault, as defendant driver acknowledged at his deposition. Plaintiff did not have a duty to see what was occurring behind him and in another lane as he was driving fully within his lane in heavy traffic (see Martinez v. WE Transp. Inc., 161 A.D.3d 458, 76 N.Y.S.3d 152 [1st Dept. 2018] ). Accordingly, plaintiff is also entitled to dismissal of the affirmative defense of comparative fault.