The Rogak Report: 23 Jan 2007 ** Auto Liability - Red Signal **
- UNLESS COMPARATIVE NEGLIGENCE IS SHOWN, DRIVER WHO PASSES RED TRAFFIC
LIGHT IS NEGLIGENT AS A MATTER OF LAW
Theron Rucker v. City of New York et al., 2007 WL 121725, 2007 N.Y.
Slip Op. 50084(U) (Supreme Court, Queens Co.) (KEVIN J. KERRIGAN, J.)
Plaintiff was struck while riding a bicycle by a motor vehicle owned
by the City and operated by defendant Mahadeo at the intersection of
164th Street and Hillside Avenue in Jamaica, Queens. Plaintiff
testified in his deposition that there was a traffic light
controlling the intersection, and that the light controlling traffic
on 164th Street was green in his favor as he was in the process of
turning right onto the right lane of Hillside Avenue. As he made the
right turn, the next thing he remembers is waking up in an ambulance.
The City conceded that the vehicle that was involved in the accident
was owned by the City and that it was operated by Mahadeo within the
scope and course of his employment by the City.
Mahadeo failed to answer or appear in this action and plaintiff moved
for a default judgment against him on the issue of liability. The
motion was granted without opposition in 2006.
Plaintiff argued that he is entitled to summary judgment merely by
virtue of the default judgment against Mahadeo on the issue of
liability which, consequently, renders the City vicariously liable
pursuant to Vehicle and Traffic Law § 388. "This argument is without
merit," held the Court. "A default judgment against the operator of a
motor vehicle does not preclude the owner of the vehicle from
contesting the issue of the driver's negligence (Balanta v. Stanlaine
Taxi Corp., 307 A.D.2d 1017 [2nd Dept 2003])."
"However, the record on this motion establishes plaintiff's prima
facie entitlement to summary judgment. It is uncontested that
plaintiff had the green light giving him the right of way at the
intersection. The driver who has a green light has the right to
assume that the light is red for cross traffic and that other drivers
will stop for the red light (PJI 2:79, citing Shea v. Judson, 283
N.Y. 393 ). The City neither demonstrates nor alleges that the
traffic light governing Mahadeo's movement was not red and that
Mahadeo did not proceed into the intersection through the red light."
"VTL § 1110 provides that the driver of a vehicle shall obey the
instructions of any official traffic control device, and VTL § 1111
provides, inter alia, that a driver must stop at a red light. Since
defendants do not contest that there was a traffic signal at the
subject intersection or that plaintiff had the green light entitling
him to proceed, it is likewise presumed that Mahadeo had the red
light obligating him to stop. The failure of a driver to stop at a
red light constitutes negligence as a matter of law (Carpio v. Leahy
Mechanical Corp., 30 AD3d 554 [2nd Dept 2006]). Plaintiff established
his prima facie entitlement to summary judgment as a matter of law by
proffering uncontested testimony that the traffic control device
governing the subject intersection was green in his favor and that he
was struck by defendant's vehicle after he entered the intersection
(Diasparra v. Smith, 253 A.D.2d 840 [2nd Dept 1998]; Salenius v.
Lisbon, 217 A.D.2d 692 [2nd Dept 1995])."
"The burden thereupon shifted to defendant to establish any issues of
fact so as to preclude the granting of summary judgment. The City has
failed to meet its burden. The City fails to raise a triable issue of
fact as to whether plaintiff had been comparatively negligent. The
City neither disputes any of the testimony in plaintiff's deposition
nor proffers any evidence so as to raise any triable issue of fact as
to whether plaintiff was comparatively negligent."
"The negligence of the operator of a motor vehicle is imputed to its
owner where the use or operation of the automobile was permissive on
the part of the owner (Vehicle and Traffic Law § 388). Since
plaintiff has established that Mahadeo was negligent, the City is,
likewise, liable vicariously. In the instant case, the City admits
that the vehicle that was involved in the accident was owned by the
City and that Mahadeo was a permissive operator of the vehicle.
Moreover, since the City concedes that its vehicle was operated by
Mahadeo within the scope and course of his employment, the City is
also liable under the doctrine of respondeat superior. Consequently,
inasmuch as plaintiff has met his burden that Mahadeo was negligent
and that his negligence was the sole substantial factor in causing
the accident, plaintiff is entitled to summary judgment against the
City as a matter of law on the issue of liability."