United States District Court, S.D. New York
For Amanda Lee, Plaintiff: John Peter Bostany, LEAD ATTORNEY, The Bostany Law Firm PLLC, New York, NY; Matthew Aaron Windman, The Bostany Law Firm, New York, NY.
For Joel B. Charles, John W. Wany, Defendants: Christopher Miller, James G. Bilello & Associates, Westbury, NY.
John F. Keenan, United States District Judge.
Before the Court is Plaintiff's motion pursuant to Federal Rule of Civil Procedure 56 for summary judgment on the issue of liability. For the reasons that follow, the motion is granted and summary judgment is entered in favor of Plaintiff on this issue.
Plaintiff Amanda Lee alleges that at about 11:20 P.M. on September 18, 2012, she was walking westbound on York Avenue in the north crosswalk at East 68th Street in Manhattan when she was struck by a car making a left turn from East 68th Street into the northbound lane of York Avenue. The car was owned by Defendant John W. Wany and driven by Defendant Joel B. Charles. Plaintiff further asserts that she had the walk signal, and that she looked both ways before crossing the street. She claims that she sustained a " serious injury" as defined in New York Insurance Law § 5102(d), and seeks $1 million plus interest, fees, and costs. In support of her summary judgment motion,
Plaintiff has filed, among other things, a Rule 56.1 statement and a copy of the Police Accident Report prepared by the responding officer.
Defendants oppose summary judgment. They argue that an issue of fact exists as to whether Plaintiff was within the crosswalk when Defendant Charles hit her. The basis for this contention is a sworn declaration by Charles submitted contemporaneously with Defendants' opposition papers, which states in relevant part: " I have been advised by my attorney that Amanda Lee claims she was crossing the street in a pedestrian crosswalk when the incident occurred. This is not correct; Amanda Lee was not in the pedestrian crosswalk when the incident with my vehicle occurred." (Charles Dec. ¶ 11.) According to Defendants, Charles's account raises a material issue of fact as to how the accident occurred, and also introduces the possibility that Plaintiff was comparatively negligent.
A. Legal Standard
Summary judgment is warranted when " there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute regarding a material fact is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996). The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Additionally, Local Civil Rule 56.1 requires the movant to file a " short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civ. Rule 56.1(a).
The party opposing summary judgment must present affirmative evidence in order to defeat a properly supported motion. Anderson, 477 U.S. at 257. " Factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not 'genuine' issues for trial." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); see also Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (" [I]n opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a triable issue merely by submitting his affidavit denying the fact." ). Finally, facts set forth in the movant's Rule 56.1 statement are deemed admitted " unless specifically controverted by a correspondingly ...