African Sarac-Marshall v. Mikalopas

Sarac-Marshall v Mikalopas (2015 NY Slip Op 01714)

Sarac-Marshall v Mikalopas

2015 NY Slip Op 01714

Decided on February 26, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 26, 2015
Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.

14351 302826/12

[*1] 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.

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 AD3d 568, 569 [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 AD3d 341, 342 [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 AD3d at 569; Espinoza v Loor, 299 AD2d 167, 168 [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 AD3d 762, 765 [2d Dept 2009]; Gajjar v Shah, 31 AD3d 377, 378 [2d Dept 2006]).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 26, 2015

CLERK