Plaintiff Yolanda Bejasa-Omega brings this personal injury action after being struck by a car driven by defendant Ronald M. Sklon.
Under the parties' stipulation, so-ordered on November 6, 2007, PV Holding Corp. is no longer a defendant in this action. Omega's unopposed motion to remove PV Holding from the caption of this action is granted.
Omega moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on the issue of liability. Defendant opposes, arguing that even if he was negligent, plaintiff was also negligent.
The following facts are undisputed. On October 27, 2006, Sklon was driving and struck Omega as she was walking in the crosswalk from the southwest to the southeast corner of 44th Street and Second Avenue. When he hit Omega, Sklon was turning right from eastbound 44th Street to southbound Second Avenue. When Omega entered the crosswalk, the pedestrian crossing light was in her favor.
Omega testified that she stopped at the southeast corner of the intersection at 44th Street and Second Avenue for "probably a second" before entering the crosswalk. December 19, 2007 Affirmation of Matthew Sakkas, Ex. E, p. 8. The light indicated "Walk" so she proceeded to cross Second Avenue in the crosswalk. She did not look to her left or right before entering the crosswalk. She had crossed the first lane of traffic and was perhaps halfway into the second lane when she was hit. She testified that she did not see Sklon's vehicle before it hit her. She did not see any cars turning right onto Second Avenue from 44th Street. When the car struck her, it was facing southbound on Second Avenue, and it hit her on her left side.
Sklon testified that he stopped for a red light on 44th Street at Second Avenue. There were no vehicles in front of him. When the light turned green, he turned from 44th Street to go southbound on Second Avenue. He hit Omega "Just as I was turning to Second Avenue." December 19, 2007 Affirmation of Matthew Sakkas, Ex. F, p. 13. Approximately 20-30 seconds elapsed between the light turning green and Sklon's impact with Omega. When he hit her, she was in the crosswalk, about two steps off the curb. Sklon first saw Omega when he was waiting at the red light. She was standing on the sidewalk, and he watched her from the moment he first saw her until the point of impact. He hit her with his front bumper when he was two-thirds of the way through his turn. He testified that "I started turning. She was still on the curb, just as I was about to finish the turn. She stepped out in front of me and I stopped. I guess, we came in contact." Id. at pp. 16-17. He also stated that "She was just looking around and that's what made me go a little bit slow around the curb because she was just standing there . . . Just had a strange look. Like she wasn't sure where she was. At least that's the way I saw it." Id. at pp. 31-32.
A motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To prevail on a motion for summary judgment, the moving party must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden is then on the non-moving party to set forth specific facts raising a genuine issue of fact for trial. Id. at 324. "All reasonable inferences and any ambiguities are drawn in favor of the nonmoving party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).
The New York City Traffic Regulations, 34 RCNY § 4-03(c) state:
Pedestrian control signals. Whenever pedestrian control signals are in operation, exhibiting the words "WALK" and "DON'T WALK" successively, the international green or red hand symbols, figures or any other internationally recognized representation concerning the movement of pedestrians, such signals shall indicate as follows:
(1) WALK, green hand symbol or green walking figure. Pedestrians facing such signal may proceed across the roadway in the direction of the signal in any crosswalk. Vehicular traffic ...