The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S.M.J.
Oswaldo Hidalgo ("Plaintiff") commenced this negligence action against Winding Road Leasing Corp. ("Winding Road"), Peter Scalamandre & Sons, Inc. ("Scalamandre"), and Victor
A. Lambur ("Lambur") on January 24, 2012, seeking damages for personal injuries resulting from a vehicle accident. On October 18, 2012, Plaintiff filed an amended complaint adding Seament Transportation, LLC ("Seament") (collectively, "Defendants") ,*fn1 and XYZ Corp. On October 29, 2012, Plaintiff filed a second amended complaint removing XYZ Corp. Defendants now move for summary judgment. For the reasons that follow, their motion is denied.
Plaintiff is a citizen of Mexico and is not a permanent legal resident of any state. (Dkt. No. 10 ("2nd Am. Compl.") ¶ 1; Dkt. No. 15, Exh. A at 7:9-21.) Winding Road, Seament, and Scalamandre are New York corporations with their principal places of business in Nassau County, New York. (2nd Am. Compl. ¶¶ 2, 4, 6.) Lambur is a natural person residing in Suffolk County, New York. (Id. ¶ 8.)
On June 10, 2011, Plaintiff was riding his bicycle against the direction of traffic on College Point Avenue in Queens, New York. (Defs.' Stmt. of Undisputed Facts Pursuant to Local Rule 56.1 ("Defs.' 56.1 Stmt.") ¶¶ 2, 10; Pl.'s Stmt. of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1 Stmt.") ¶¶ 2, 10); Dkt. No. 13, Exh. E.) As Plaintiff approached the intersection of Horace Harding Expressway and College Point Avenue, he saw a tractor-trailer truck begin to make a wide right turn from Horace Harding Expressway onto College Point Avenue. (Defs.' 56.1 Stmt. ¶ 10; Pl.'s 56.1 Stmt. ¶ 10.) Lambur, the truck's driver, also observed Plaintiff before turning, stopped his vehicle, and allowed Plaintiff to cross the street. (Defs.' 56.1 Stmt. ¶ 18; Pl.'s 56.1 Stmt. ¶ 18.) Once Plaintiff crossed the street, Lambur began to make a "very slow" right turn onto College Point Avenue. (Defs.' 56.1 Stmt. ¶ 20; Pl.'s 56.1 Stmt. ¶ 20; Dkt. No. 13, Exh. E.)
During the course of the turn, Plaintiff remained stopped in the street near the corner of the intersection with his left foot on the sidewalk. (Defs.' 56.1 Stmt. ¶¶ 11, 14-15; Pl.'s 56.1 Stmt. ¶¶ 11, 14-15.) Plaintiff feared that the truck would strike him during the turn so he flung himself off of his bicycle onto the sidewalk. (Defs.' 56.1 Stmt. ¶¶ 11, 16; Pl.'s 56.1 Stmt. ¶¶ 11, 16.) Plaintiff's leg remained in the roadway and the truck's rear wheels struck Plaintiff's leg. (Id.) At no time did any portion of the truck cross the curb. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. ¶ 22.)
The truck was owned by Winding Road at the time of the accident, and it was driven by Lambur in the course of his employment with Seament. (Defs.' 56.1 Stmt. ¶ 8; Pl.'s 56.1 Stmt. ¶ 8.) Although the truck was empty at the time of the accident, it was en route to pick up cement for Scalamandre. (Id.)
Plaintiff subsequently brought this action seeking recovery for injuries sustained to his leg during the collision. (Defs.' 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1.)
The court has diversity jurisdiction over this matter as there is complete diversity among the parties. See 28 U.S.C. § 1332(a)(2); see also First Tenn. Bank, N.A. v. Black, No. 10-CV-4925 (FB) (SMG), 2011 WL 7428818, at *1-2 (E.D.N.Y. Sept. 9, 2011), adopted by, 2012 WL 628616 (E.D.N.Y. Feb. 27, 2012). New York law applies. First Tenn. Bank, N.A., 2011 WL 7428818, at *2 ("Th[e] court, sitting in diversity, must apply the law of the forum state, here New York, on outcome determinative issues[.]") (citing Bank of N.Y. v. Amoco Oil ...