Loading ...
Sorry, an error occurred while loading the content.

The Rogak Report: 23 Jan 2007 ** Auto Liability - Red Signal **

Expand Messages
  • Lawrence Rogak
    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
    Message 1 of 1 , Jan 24, 2007
    • 0 Attachment
      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 [1940]). 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."

      Larry Rogak
    Your message has been successfully submitted and would be delivered to recipients shortly.