The opinion
Taliferrow v Lixi Zhu
2024 NY Slip Op 32870(U)
August 12, 2024
Supreme Court, Kings County
Docket Number: Index No. 535053/2022
Judge: Wavny Toussaint
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
At an IAS Term, Part 70 of the
Supreme Court of the State of New
York, held in and for the County of
Kings, at the Courthouse, at
360 Adams Street, Brooklyn, New
York, on the irday of August 2024.
PRESENT:
HON. WAVNYTOUSSAINT,
Justice.
-----------------------------------X
TARENCE TALIFERROW,
Plaintiff,
Index No. 535053/2022
- against -
DECISION AND ORDER
LIXI ZHU, and AMAZON LOGISTICS INC,
Motion Seq. #01 and 02
Defendants.
-----------------------------------X
The following e-filed papers read herein:
NYSCEF Doc Nos.
Notice of Motion/Order to Shower Cause/
Petition/Cross Motion and
Affidavits (Affirmations) _ _ _ _ _ _ __ 38-52, 60-68
Opposing Affidavits (Affirmations) _ _ __ 53-59
Reply Affidavits (Affirmations) _ _ _ _ __ 70-71
Upon the foregoing papers, defendants Lixi Zhu ("Zhu") and Amazon Logistics,
Inc. ("Amazon" and collectively as "defendants") move for an order granting summary
judgment pursuant to CPLR 3212 dismissing the complaint on the basis the plaintiff cannot
make out a prima facie case of liability against the defendants (Motion Seq. 1). Plaintiff
cross moves for an order, pursuant to CPLR 3212, granting summary judgment on the
grounds that the defendants were negligent per se, as a matter of law; defendants were
negligent in failing to yield the right of way; and defendants failed to keep their vehicle
under proper control (Motion Seq. 2).
1 of 11
[* 1]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
BACKGROUND
This is an action for personal injuries allegedly sustained by the plaintiff as a result
of a motor vehicle and bicycle accident that occurred on October 22, 2022 at the
intersection of Atlantic Avenue and Fort Greene Place ("subject intersection"), Brooklyn,
New York. At the time of the accident, the plaintiff was riding a bicycle and defendant Zhu
was operating a truck owned by Amazon.
PROCEDURAL HISTORY
On or about December 1, 2022, plaintiff commenced the action by filing a summons
and complaint against defendants Zhu and Amazon, asserting a common law negligence
claim. On January 1, 2023, defendant Amazon joined issue by filing its answer to the
complaint with crossclaims against co-defendant Zhu. On April 25, 2023, defendant Zhu
joined issue by filing his answer. On October 25, 2023, plaintiff filed a note of issue.
Defendants Zhu and Amazon now move for summary judgment. The plaintiff opposes and
cross moves for summary judgment.
The Parties' Positions
Defendants' Summary Judgment Motion
Defendants argue that they were not negligent, as defendant Zhu had the right of
way at the time of the accident, had less than a second to react, and therefore was unable
to avoid the collision as plaintiff crossed against the light. Defendants assert the plaintiff
violated McKinney's Vehicle and Traffic Law§§ 1231 (traffic laws apply to persons riding
bicycles), 1110 (a) (obedience to and required traffic-control devices), 1234 (a) (riding on
roadways, shoulders, bicycle), 1234 (c), and 1236 (b) (lamps and other equipment on
2
2 of 11
[* 2]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
bicycles), as well as New York City Traffic Rules, Title 34 §§ 4-02 (a) (compliance with
and effect of traffic rules), 4-07 (c)(3)(i) (restrictions on crossing sidewalks), 4-12 (o)(l)
(use of roadways), 19-176 (b) (bicycle operation on sidewalks prohibited), 19-176 ( c), 19-
176 (d) and 19-195 .1 (b) (bicyclist rights and duties at an intersection).
In support, defendants submit, inter alia, a police report, still photographs and dash
camera video footage ("video footage") leading up to the accident, the deposition testimony
of plaintiff and defendant Zhu. The police report states that defendant Zhu was "travelling
straight east bound on Atlantic A venue with a green light and passing the intersection of
Fort Greene Place when [plaintiff] attempted to cross the ... street on a bike from the
southeast comer of Atlantic Avenue to the southwest comer of Atlantic Avenue against the
light." This caused defendant Zhu to collide with plaintiff, which resulted in plaintiff being
ejected from the bicycle and sustaining injuries to his legs, back and a temporary loss of
consciousness amongst other injuries. After regaining consciousness, plaintiff does not and
could not remember the incident.
Defendants assert the still photographs and the video footage show the traffic light
was in defendant Zhu's favor as he was entering the subject intersection and when he
collided with the plaintiff. The video also shows after the traffic light turned green at the
intersection of Flatbush and Atlantic Avenue, defendant Zhu accelerated, passing two
vehicles that were directly ahead of him. He continued to accelerate, entering the subject
intersection, until the point of impact.
At defendant Zhu's deposition, a copy of which defendants provided to the court,
he testified that he was the first vehicle at the red light, and there were other cars behind
3
3 of 11
[* 3]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
him. 1 He was able to see the traffic light on Fort Greene Avenue tum green when the traffic
light on Flatbush A venue turned green. 2 He travelled down from Flatbush Avenue and
Atlantic Avenue and entered the subject intersection. 3 He asserts he was travelling less than
29 miles per hour and around 25 miles per hour. 4 Defendant Zhu noticed the plaintiff in the
crosswalk, and plaintiff was in his field of vision all the way up to the point of the accident. 5
Defendant Zhu stepped on the brake immediately when he saw the plaintiff. 6 He also
testified that the plaintiff was crossing the road very fast so there wasn't enough time for
him to brake as the plaintiff was already in the middle of the road, 7 and that he only saw
the plaintiff when he was lying on the ground. 8
Defendant asserts that at plaintiffs deposition, he testified that the accident occurred
on Atlantic Avenue and Fort Greene. 9 Plaintiff testified that he was looking straight ahead,
had the right of way, 10 and he did not see a car prior to the accident. 11 Plaintiff also testified
that he does not have any memory of the accident happening. 12
Plaintiff's Opposition
In opposition, plaintiff contends the following: ( 1) the speed limit in the City ofNew
York is 25 miles per hour unless otherwise posted; (2) plaintiff entered the subject
1 Defendant Zhu's EBT tr page 23, lines 25 to page 24, lines 2-6.
2 Defendant Zhu's EBT tr page 31, lines 17-21.
3 Defendant Zhu's EBT tr page 32, lines 3-11.
4 Defendant Zhu's EBT tr page 43, lines 5-10; page 17, lines 18-21.
5 Defendant Zhu's EBT tr page 53, lines 2-6.
6 Defendant Zhu's EBT tr page 18, lines 2-5.
7 Defendant Zhu's EBT tr page 18, lines 10-14; page 19, lines 8-11.
8 Defendant Zhu's EBT tr page 40, lines 16-22.
9 Plaintiff's EBT Tr page 20, lines 3-8.
10 Plaintiff's EBT Tr page 22, lines 13-25 to page 23, lines 1-3.
11 Plaintiff's EBT Tr page 23, lines 4-12.
12 Plaintiff's EBT Tr page 23, line 21-24; page 24 lines 23-25 to page 25, line 1; page 30, lines 11-15 .
4
4 of 11
[* 4]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
intersection with the traffic light in plaintiffs favor before defendant Zhu entered it; (3)
defendants saw the plaintiff on the crosswalk in the intersection before he had entered the
intersection, and yet (defendant Zhu) continued to accelerate through the subject
intersection; (4) defendant Zhu, from a stopped position, over a block before the
intersection of where the accident occurred, continued to accelerate to exceed the legal
speed limit, passing two moving cars in a heavily trafficked area, as he entered the
intersection where the accident occurred; and (5) defendant Zhu skidded at the time of the
accident, failed to apply his brakes, and was illegally speeding at the time he hit the
plaintiff. 13 Plaintiff submits, inter alia, his affidavit, which states that he entered the
intersection with a green traffic light in his favor, and at the time he entered the intersection,
there were no cars. Additionally, he stated he did not regain any memory until days after
the accident.
Plaintiff rebuts defendant Zhu's contentions and deposition testimony that he was
not speeding. Plaintiff notes that the still photographs and video footage showed defendant
Zhu was driving at 31 miles per hour. Plaintiff contends that both his and defendant Zhu's
deposition testimony coupled with the video footage show that the plaintiff had entered the
subject intersection with a green traffic light and the light subsequently changed before the
defendant entered the subject intersection. Plaintiff further contends that defendant Zhu
saw the plaintiff on the crosswalk in the intersection before he had entered the intersection.
13 NYSCEF Doc. No. 53.
5
5 of 11
[* 5]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
Further, plaintiff requests that the Court take judicial notice that the speed limit in the City
of New York is 25 miles per hour unless otherwise posted.
Defendants' Reply
Defendants reiterate that the evidence shows plaintiff disobeyed a red light, and that
plaintiff is merely concluding and/or speculating as to whether he had the right of way, as
plaintiff testified, he did not have an independent recollection of the accident and did not
state what he did but rather what he would do.
Plaintiff's Cross Motion for Summary Judgment
Plaintiff argues defendant driver Zhu was negligent per se, as he was speeding at
the time of the accident, that the speeding was a substantial factor in bringing about the
accident and plaintiffs injuries, and he failed to give right of way to plaintiff in the
crosswalk before entering the intersection. Plaintiff notes that defendant Zhu testified at
his deposition that he applied his brakes with force when he saw the plaintiff. 14 However,
plaintiff argues that the video evidence demonstrated the vehicle continued to accelerate,
resulting in a collision with the plaintiff.
Plaintiff reiterates his contentions from his opposition to defendants' motion for
summary judgment that he had the right of way; that the traffic light was green in his favor
and that he had entered the intersection before the light turned green in favor for defendants.
Additionally, plaintiff requests that the Court take judicial notice that the speed limit in the
City of New York is 25 miles per hour unless otherwise posted. In support of his cross
14 Defendant Zhu's EBT tr page 18, lines 2-5; page 36, lines 11-15.
6
6 of 11
[* 6]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
motion for summary judgment plaintiff submitted the same evidence as in his opposition
to defendants' motion for summary judgment.
Defendants' Opposition
Defendants argue that the plaintiff is entirely responsible for the accident, as he went
through a red light, and the dash cam video and still photographs demonstrated that
defendant had the green light and thereby allowed through the intersection. Defendants
refutes plaintiffs contention that he had the green light and entered the intersection prior
to defendants, as plaintiffs affidavit contradicts plaintiffs own deposition testimony, and
the police report indicated that plaintiff does not and could not remember the accident.
Defendant reiterates that plaintiff violated Vehicle and Traffic Law§§ 1110 (a), 1234 (a)
and 1234 (c).
On March 27, 2024, the Court heard oral argument wherein defendants relied in part
on Batista v Metro. Transportation Auth., 210 AD3d 487 [Pt Dep't 2022] and Uribe v
Pronto Gas Heating Supplies, Inc., 129 AD3d 509 [1 st Dep't 2015], reiterating that they
had entered the intersection with a green traffic light in their favor, that defendant driver
was not comparatively negligent, and that the plaintiff was the sole proximate cause of the
accident. The Court reserved decision.
DISCUSSION
Summary judgment is a drastic remedy that deprives a litigant of his or her day in
court and should only be granted if there are no triable issues of fact (Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986]). The moving party bears the burden of making a prima
facie showing of entitlement of judgment as a matter of law, tendering sufficient evidence
7
7 of 11
[* 7]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
in admissible form, demonstrating there is an absence of material issues of fact (Manicone
v City of New York, 75 AD3d 535, 537 [2d Dep't 2010]). "Failure to make such showing
requires denial of the motion, regardless of the sufficiency of the opposing papers"
(Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once the
moving party has met the initial burden, the opposing party must demonstrate evidentiary
proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at
324 ). "If there is any doubt as to the existence of a triable issue of fact, the motion for
summary judgment must be denied" (Morejon v New York City Transit Auth., 216 AD3d
134, 136 [2d Dep't 2023]).
"As there can be more than one proximate cause of an accident,
a defendant driver moving for summary judgment in a
negligence action has the burden of establishing, prima facie,
that he or she was not at fault in the happening of the subject.
[A] person riding a bicycle on a roadway is entitled to all of the
rights and bears all of the responsibilities of a driver of a motor
vehicle. In general, a motorist is required to keep a reasonably
vigilant lookout for bicyclists, to sound the vehicle's horn when
a reasonably prudent person would do so in order to warn a
bicyclist of danger, and to operate the vehicle with reasonable
care to avoid colliding with anyone on the road (Bliwas v Paul,
227 AD3d 852, 853 [2d Dep't 2024][internal citations
omitted]).
Here, defendants failed to establish a pnma facie showing of entitlement to
summary judgment on the issue of liability. The submitted evidence in support of
defendants' motion failed to eliminate triable issues of fact as to whether the defendant
driver was free from fault in the happening of the accident (Galloway v Lux Credit
Consultants, LLC, 224 AD3d 891, 891 [2d Dep't 2024]; Ballentine v Perrone, 179 AD3d
993, 994-995 [2d Dep't 2020]).
8
8 of 11
[* 8]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
Although defendant Zhu testified that he noticed plaintiff in the crosswalk and that
he braked upon seeing the plaintiff, the still photographs and video footage shows
defendant Zhu continued to drive and accelerate until the collision with the plaintiff.
Moreover, the alleged speed in which defendant Zhu claims he was driving at the time of
the accident contradicts the speed shown in still photographs and video footage, and it
exceeds the alleged 25 miles per hour speed limit, which may establish liability on
defendants' part (Matias v Bello, 165 AD3d 642, 643 [2d Dep't 2018]). Therefore,
defendants' own submissions raise triable issues of fact as to whether the defendant driver
failed to see what was there to be seen through the proper use of his senses and failed to
exercise due care to avoid the collision (Khalil v Garcia-Olea, 222 AD3d 853, 854-855 [2d
Dep't 2023]). Since the defendants did not sustain their prima facie burden of establishing
their entitlement to judgment as a matter of law, it is not necessary to consider the
sufficiency of the opposition papers (Winegrad, 64 NY2d at 853).
Turning to plaintiffs cross motion,
"[a] plaintiff in a negligence action moving for summary
judgment on the issue of liability must establish, prima facie,
that the defendant breached a duty owed to the plaintiff and
that the defendant's negligence was a proximate cause of the
alleged injuries. A plaintiff is no longer required to show
freedom from comparative fault in establishing his or her
prima facie case .... A bicyclist is required to use reasonable
care for his or her own safety, to keep a reasonably vigilant
lookout for vehicles, and to avoid placing himself or herself
into a dangerous position" (Amancio-Gonzalez v Medina, 223
AD3d 861, 861-862 [2d Dep't 2024][intemal quotations and
citations omitted]).
9
9 of 11
[* 9]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
Here, the plaintiff failed to establish his prima facie entitlement to judgment as a
matter of law on the issue of liability. The deposition testimony of plaintiff and defendant
Zhu raises triable issues of fact as to whether defendants were negligent and, if so, whether
such negligence caused or contributed to the accident (Singh v Hana Express Cab Corp.,
216 AD3d 1026, 1027-1028 [2d Dep't 2023]), and whether plaintiff was negligent, as the
evidence proffered in support of plaintiffs motion presented varying accounts of how the
accident occurred (Garutti v Kim Co. Refrigeration Corp., 222 AD3d 728 [2d Dep 't 2023]).
"Since the plaintiff failed to meet his initial burden as the movant, it is not necessary to
review the sufficiency of the defendant's opposition papers" (Ramirez v Wangdu, 195
AD3d 646, 647 [2d Dep't 2021], citing Winegrad v New York University Medical Center,
64 NY2d 851, 853 [1985]).
The Court finds defendants' reliance on Batista v Metro. Transportation Auth., 210
AD3d 487 [1 st Dep't 2022] and Uribe v Pronto Gas Heating Supplies, Inc., 129 AD3d 509
[1 st Dep't 2015] is misplaced, as the Court in each case did not find credibility issues. In
Batista, the Court ruled in favor of the defendant by reasoning that the surveillance footage
of the accident demonstrated that the plaintiffs testimony was incorrect, and thus did not
raise a credibility issue. Moreover, the plaintiff in that case failed to offer any evidence as
to what the bus driver could have done to avoid the accident or that he was negligently
operating the bus.
The Court also finds Uribe inapplicable. In that case, there was no dispute that the
plaintiff in Uribe had the right of way, and the defendant driver was unable to stop in time
to avoid the collision with the plaintiff, because a bottle had become stuck under the brake
10
10 of 11
[* 10]
FILED: KINGS COUNTY CLERK 08/14/2024 04:42 PM INDEX NO. 535053/2022
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 08/14/2024
pedal, so he had to use the emergency brake, resulting in his failure to yield to the right of
way to plaintiff. However, in this case, there are conflicting accident descriptions based on
the deposition testimony of Defendant Zhu and plaintiff along with plaintiffs affidavit as
to the facts surrounding the accident (Saviano v TT of Massapequa, Inc., 223 AD3d 851,
853 [2d Dep't 2024]).
The parties' remaining contentions, to the extent not expressly set forth herein, have
been considered and are denied.
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment (Motion Seq. 01) is
denied; and it is further
ORDERED that plaintiffs cross motion for summary judgment (Motion Seq. 02)
is denied.
This constitutes the Decision and Order of the Court.
ENTER
-
:==3M
J. S. C. .
Hon. wavny Tousaaant
J.S.C.
11
11 of 11
[* 11]