Opinion
02-26-2015
African SARAC–MARSHALL, Plaintiff–Respondent, v. John B. MIKALOPAS, et al., Defendants–Appellants.
Montfort, Healy, McGuire & Salley, Garden City (Michael A. Baranowicz of counsel), for appellants. Leav & Steinberg, LLP, New York (Kathleen E. Beatty of counsel), for respondent.
Montfort, Healy, McGuire & Salley, Garden City (Michael A. Baranowicz of counsel), for appellants.Leav & Steinberg, LLP, New York (Kathleen E. Beatty of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, ACOSTA, MOSKOWITZ, DeGRASSE, JJ.
Opinion Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered August 16, 2013, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
Plaintiff was riding a bicycle southbound on Ralph Avenue when the vehicle driven by defendant John Mikalopas made a left-hand turn from the northbound lane, over the double yellow line, to enter into a parking lot, causing a collision between the vehicle and plaintiff's bicycle. Plaintiff demonstrated that defendant was negligent by submitting defendant's testimony that he made a left-hand turn without ensuring that it was safe to do so (see Vehicle and Traffic Law § 1141 ; see also Foreman v. Skeif, 115 A.D.3d 568, 569, 982 N.Y.S.2d 314 [1st Dept.2014] ). Defendant admitted that his view was not blocked, that he did not look for bicyclists, and that he did not see plaintiff. Accordingly, plaintiff showed that defendant failed “to see that which, through the proper use of senses, should have been seen” (Griffin v. Pennoyer, 49 A.D.3d 341, 342, 852 N.Y.S.2d 765 [1st Dept. 2008] ). Plaintiff also demonstrated his freedom from comparative negligence by submitting evidence that, among other things, he was traveling below the speed limit in his lane of travel at the time of the accident, and that he saw the vehicle driven by defendant to his left for a “brief second or two” before the collision, giving him no time to react (see Foreman, 115 A.D.3d at 569, 982 N.Y.S.2d 314 ; Espinoza v. Loor, 299 A.D.2d 167, 168, 753 N.Y.S.2d 29 [1st Dept.2002] ).
In opposition, defendants failed to raise a triable issue of fact as to plaintiff's alleged negligence. Defendants failed to offer admissible evidence to support their contention that plaintiff could have avoided the collision (see Yelder v. Walters, 64 A.D.3d 762, 765, 883 N.Y.S.2d 290 [2d Dept.2009] ; Gajjar v. Shah, 31 A.D.3d 377, 378, 817 N.Y.S.2d 653 [2d Dept.2006] ).
We have considered defendants' remaining contentions and find them unavailing.