As trial lawyers, we know that proving liability is often more than half the battle. Without liability, damages become moot. So, it is welcome when we are presented with a strong liability case. One of the soundest is the “pedestrian knock-down” in a crosswalk. The defendant driver must yield the right of way to the pedestrian in the crosswalk, if he does not, he is liable. When presented with this case, there is no reason to spend the time slogging through the discovery period in order to put it in on the trial calendar. Instead, consider moving for summary judgment in advance of discovery.
Assume a case wherein the defendant driver makes a right hand turn into a crosswalk and strikes the plaintiff in the crosswalk. Also assume the police report correctly documents the scenario and that there is no evidence that plaintiff “darted out” into the way of the injurious vehicle. As a matter of law, defendants’ driver negligence should be deemed the sole proximate cause of the accident.
This Motion Is Proper and Timely
Summary judgment motions may be brought at any time after an issue is joined. CPLR 3212. Completion of discovery is not a requisite before the court can grant a summary judgment motion. Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023,1026 (1983); Naryaev v. Solon, 6 A.D.3d 510 (2d Dep’t 2004); Herba v. Chichester, 301 A.D.2d 822 (3d Dep’t 2003). “The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.” Naryaev, 6 A.D.3d at 510; Jones v. Gameray, 153 A.D.2d 550 (2d Dep’t 1989). A party opposing summary judgment on the basis of requiring discovery must prove that he is “not merely seeking a fishing expedition.” Kaltsas v. Solow, 15 Misc.3d 1124(A) (Westchester Cty. S.Ct. 2007). It is true that a party opposing a motion for summary judgment may claim that facts essential to justify opposition exist which are within the exclusive knowledge and possession of the moving party and, thus, that the motion should be delayed until after some discovery. See CPLR §3212(f). However, without an evidentiary showing by the opposing party, “mere speculation or conjecture” is insufficient to support this conclusion. Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 (3d Dep’t 2000).
“A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Bailey v. New York City Transit Authority, 270 AD2d 156, 157 (1st Dept.2000) [emphasis added]; Zuckerman v City of New York, 9 N.Y.2d 557 (N.Y. 1980). (“The opposition papers submitted herein consists solely of the affirmation of an attorney. As such, the defendant has failed to submit evidence in admissible form to raise a triable issue of fact. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”)
Defense counsel may argue that because depositions have not yet been held in this case, the within motion is premature. This argument must fail. It is well settled that the “defendant’s failure to raise any factual issues to absolve him of liability or even submit a sworn statement of facts or to credibly explain the failure to do so defeats the need for discovery. Since defendant is the party with knowledge of the factual circumstances as to how he collided with the front vehicle, discovery would serve no purpose.” Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (1 Dept. 1999). [Emphasis added]. Furthermore, “the defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts.” Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 (2 Dept. 2005). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.” Kimyagarov v. Nixon Taxi Corp., — A.D.3d —-, — N.Y.S.2d —-, 2007 WL 4127688, 2007 N.Y. Slip Op. 09208 (2 Dept. 2007). [Emphasis added]. As the Appellate Division recently held in a decision affirming the trial court’s granting of partial summary judgment on liability to the plaintiff in a rear-end automobile accident case, “…in view of the fact that the defendants had personal knowledge of the relevant facts underlying the accident, their purported need to conduct discovery does not warrant denial of the motion.” Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2 Dept 2006).
Summary Judgment is warranted
In the seminal case of Andre v. Pomeroy, 362 N.Y.S.2d 131, 133 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability. (“when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny other litigants the right to have their claims properly adjudicated”).
In the scenario at bar, there is likewise no genuine issue as to the negligence of defendants. The driver drove his car directly into a pedestrian crosswalk without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements. See, VTL § 1111; NYC Traffic Rules § 4-04 [emphasis added] (“the operator of a vehicle shall yield the right of way to a pedestrian crossing within a crosswalk”). Furthermore, drivers also have a common law duty to see “that which out to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd Dep’t 1986). Failure to do so is negligence as a matter of law. See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2nd Dep’t 2002).
New York State Vehicle and Traffic Law states:
§ 1111. Traffic-control signal indications
(a) Green indications:
1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
2. Traffic, except pedestrians, facing a steady green arrow signal may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time, except that a U-Turn may be made by traffic facing a left green arrow signal unless a sign prohibits such U-Turn or such U-Turn is in violation of any other provision of law. Such traffic shall yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited.
New York law is clear that where a motorist fails to see, and thus fails to yield the right of way to, a pedestrian crossing in a crosswalk with a pedestrian walk signal in his favor, the motorist is entirely at fault for the accident. In Voskin v Lemel, 52 A.D.3d 503, 859 N.Y.S.2d 489 [2nd Dept. 2008] [emphasis added], the court held:
In this case involving an accident between a motor vehicle and a pedestrian, the plaintiff established his prima facie entitlement to summary judgment in his favor by demonstrating that the defendant motorist was negligent in failing to yield the right of way to him while he was crossing a street, within the crosswalk, with the pedestrian “WALK” signal in his favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiff’s case was buttressed by the certified copy of the police accident report containing the defendant’s admission that he did not see the plaintiff and struck him (see Niyazov v Bradford, 13 AD3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465).
See, also, Kirchgaessner v. Hernandez, 40 A.D.3d 437, 836 N.Y.S.2d 170 [1st Dept. 2007]. In Benedikt v. Certified Lumber Corporation, 60 A.D.3d 798, 875 N.Y.S.2d 526 [2nd Dept. 2009] [emphasis added], the court held:
The plaintiffs established a prima facie case for summary judgment in their favor on the issue of liability by demonstrating that the defendant driver failed to yield the right of way to the injured plaintiff, Adina Benedikt, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiffs submitted an affidavit by the injured plaintiff to that effect, which was supported by copies of the police accident reports and the MV-104 report signed by the defendant driver, containing that defendant’s admission against interest that he did not see the injured plaintiff before he struck her (see Niyazov v Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465). The affidavit of the defendant driver, submitted in opposition to the motion, merely raised feigned issues of fact, which are insufficient to defeat a motion for summary judgment (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 664 N.Y.S.2d 826; Miller v City of New York, 214 AD2d 657, 625 N.Y.S.2d 271; Garvin v Rosenberg, 204 AD2d 388, 614 N.Y.S.2d 190), and the defendants failed to demonstrate that further discovery was warranted (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760, 825 N.Y.S.2d 516).
Claims by a defendant driver that he or she was looking out for pedestrians crossing and did not see the plaintiff are merely admissions of negligence and do not create material issues of fact. In Sulaiman v. Thomas, 54 A.D.3d 751, 863 N.Y.S.2d 723 [2nd Dept. 2008], the Court reasoned:
In his opposing affidavit, the defendant stated, inter alia, that as he made his right turn onto Sutter Avenue, the intersection and crosswalk were free of pedestrians. As he cleared the intersection, he saw several pedestrians standing on the sidewalk to his right shouting and pointing to the right side of his vehicle. He stopped, exited his vehicle, and only then saw the injured plaintiff lying on the road next to his vehicle. The defendant argued that the injured plaintiff’s negligence was the sole cause of the accident, and that he had stepped off the sidewalk and walked into the right side of the defendant’s vehicle “approximately” three feet east of the crosswalk. The defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269; Abramov v Miral Corp., 24 AD3d 397, 398). His affidavit makes clear that he did not see the injured plaintiff prior to striking him. The defendant also contended that the injured plaintiff was comparatively negligent. However, the defendant’s unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269).
In summary, there is very solid case law supporting summary judgment in this factual scenario, even before discovery. If the motion is granted, your case is advanced almost directly to the trial stage and any deposition of the plaintiff would be limited to the issue of damages only. Even should the judge lack the fortitude to grant the motion, it is still a worthwhile means of fleshing out the defense, as the opposition to the motion will necessarily include an affidavit from the driver. As such, when we have the benefit of a strong liability case, it is wise to be aggressive.