The opinion
Torres v Occhino
2025 NY Slip Op 32162(U)
June 16, 2025
Supreme Court, New York County
Docket Number: Index No. 154184/2023
Judge: Christopher Chin
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: NEW YORK COUNTY CLERK 06/17/2025 11:04 AM] INDEX NO. 154184/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. CHRISTOPHER CHIN PART 22
Justice
--------------------------------------------------------------------------------X INDEX NO. 154184/2023
KENYA TORRES,
MOTION DATE 01/13/2025
Plaintiff,
MOTION SEQ. NO. 001
- V-
ANTHONY L. OCCHINO, THE HERTZ CORPORATION
DECISION + ORDER ON
Defendant MOTION
------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 18, 19, 20, 21, 22,
23,24,25,26,27,28
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, and after oral argument, for the reasons explained below, it is
ORDERED that plaintiffs motion for summary judgment on the on the issue of liability
is granted to the extent that the court finds defendants were negligent in causing the subject
motor vehicle accident; it is further
ORDERED that defendants' fifth affirmative defense (failure to wear a seatbelt)
is dismissed.
The procedural history of this decision/order is as follows: On April 3, 2025, oral arguments
were held on the within motion (Seq. No. 001). On April 10, 2025, the court issued its
decision/order (NYSCEF Doc. No. 30). After the issuance of the April 10, 2025 decision, by
order dated May 14, 2025, the court, sua sponte, reconsidered and recalled the decision, and
restored the motion for further arguments by the parties (NYSCEF doc No. 33). On May 22,
154184/2023 TORRES, KENYA vs. OCCHINO, ANTHONY L. ET AL Page 1 of 5
Motion No. 001
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2025
2025, additional arguments were held on the record. The following constitutes the full decision
and order on this motion, as conveyed to the parties on the record.
Plaintiff moves for summary judgment on the issue ofliability based on the premise that
defendant Anthony Occhino negligently drove out from a parking lot onto a roadway where
plaintiff was driving, resulting in an accident with plaintiffs vehicle. It is alleged that defendant
Occhino had a duty to yield to plaintiffs vehicle.
It is not disputed that plaintiff was driving on West Main Street, a two-way street, and that
defendant Occhino intended to make a left-hand tum onto West Main Street from the parking
lot. It is also undisputed that Occhino's front bumper struck plaintiffs left rear passenger side
door. Defendant the Hertz Corporation ("Hertz") was the owner of the vehicle driven by
defendant Occhino, as well as defendant Occhino's employer, making Hertz vicariously liable.
Additionally, it is not disputed that plaintiffs vehicle was moving at the time the impact
occurred with defendant Occhino's vehicle.
Defendant Occhino' s testified that he did not see plaintiffs vehicle until the moment of impact
but also testified that "[plaintiff] was weaving in and out of the road" and "she was weaving
towards me as I was making my turn'' and that plaintiff was "if not closer to the center of the
road towards my side" and "but for sure she was more close into my lane. Into the opposite. Into
the center lane of the both ways".
154184/2023 TORRES, KENYA vs. OCCHINO, ANTHONY L. ET AL Page 2 of 5
Motion No. 001
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[FILED: NEW YORK COUNTY CLERK 06/17/2025 11:04 AM] INDEX NO. 154184/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2025
Plaintiff testified that she never looked to her left as she drove down West Main Street and did
not see defendant's vehicle at any time prior to impact. Plaintiff further testified that she was
driving with a New York State Lerner's permit, without a licensed adult driver next to her.
At the outset the court finds plaintiffs statement that she was driving with only a learner's
permit, without a licensed driver in the vehicle, to be an admission of a violation of Vehicle and
Traffic Law ("VTL") § 509. 1
Additionally, it is well settled that pursuant to VTL § 1143 a driver, such as defendant Occhino,
entering a roadway from a parking lot, is obligated to yield to vehicles driving on that roadway .2
The testimony of defendant Occhino that he did not observe plaintiffs vehicle until right before
impact and that the front of his vehicle struck the left rear side of plaintiff vehicle establishes that
he was negligent in the operation of his vehicle which caused the instant motor vehicle accident.
Notably, defendants did not make any arguments in opposition to show that VTL § 1143 is
inapplicable or dispute that defendant driver Occhino had an obligation to yield to plaintiffs
vehicle. Instead, the opposition focuses on facts that may show that plaintiff may also be at fault,
or comparatively negligent, for the accident. However, it is well settled that any comparative
fault or negligence on the plaintiffs part in how she operated her vehicle at the time of the
accident is not a bar to partial summary judgment on the issue of liability (see Rodriguez v. City
of New York, 31 NY3d 312,320 [2018]). In Rodriguez, the Court of Appeals specifically rejected
1
YTL 509 provides in relevant part that, "le]xcept while operating a motor vehicle during the course of a road
test...no person shall operate or drive a motor vehicle upon a public highway of this state ... unless he is duly
Iicensed ... ".
2
YTL§ 1143 provides in relevant part that "[t]he driver of a vehicle about to enter or cross a roadway from any
place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be
entered or crossed."
154184/2023 TORRES, KENYA vs. OCCHINO, ANTHONY L. ET AL Page 3 of 5
Motion No. 001
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[FILED: NEW YORK COUNTY CLERK 06/17/2025 11:04 AM] INDEX NO. 154184/2023
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the notion that the plaintiff had the burden of showing an absence of comparative fault to prevail
on a motion for partial summary judgement on the issue of defendant's liability (id. at 318). In
reversing the Appellate Division, the Court specifically stated that, "l w]c agree with plaintiff that
to obtain partial summary judgment on defendant's liability he does not have to demonstrate the
absence of his own comparative fault'" (id. at 323).
Additionally, plaintiffs admission that she did not look to her left and did not see defendant
Occhino's vehicle prior to the accident and defendant's testimony that plaintiffs vehicle was
weaving and that plaintiffs vehicle was driving in the wrong lane for her direction of travel,
along with plaintiffs admission to a VTL § 509 violation, raises material issues of fact as to,
inter alia, whether plaintiff bears any comparative fault for the subject accident; whether she
breached her duty to see what should have been seen and to exercise reasonable care to avoid the
collision under the circumstances; and whether that plaintiff was an unlicensed driver, was a
proximate cause of the accident.
Additionally. while plaintiffs motion is labeled as one seeking summary judgment on liability, it
only presents arguments as to defendants' fault and docs not address the issue of whether
plaintiff sustained a serious injury as defined under Insurance Law§ 5102 (d). Serious injury
however, is a threshold matter separate from the issue of fault (see Toure v. Avis Rent A Car Sys.,
98 NY2d 345 [2002]). Before a plaintiff may proceed to damages under Insurance Law § 5104,
both fault and serious injury must be established, which plaintiff failed to do here (see Reid v.
Brown, 308 AD2d 331, 332 [!5 1 Dept. 2003]). See also, Sabine v. State of New York, 2024 NY
Slip Op 06288, (2024) [Court of Appeals declined to rule on this issue J
154184/2023 TORRES, KENYA vs. OCCHINO, ANTHONY L. ET AL Page 4 of 5
Motion No. 001
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[FILED: NEW YORK COUNTY CLERK 06/17/2025 11:04 AM] INDEX NO. 154184/2023
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2025
Plaintiff also seeks to dismiss defendants' first affirmative defense (comparative negligence),
second affirmative defense (failure to mitigate damages) of and fifth affirmative defense (failure
to wear seatbelt). As plaintiff testified that she was wearing a seatbelt at the time of the accident
and defendants failed to proffer any evidence to contradict this, the fifth affirmative defense of
failure to wear a seatbelt is dismissed. As discussed above, since there are issues of material fact
as to plaintiffs comparative fault, the portion of the motion to dismiss the first affirmative
defense is denied. Additionally, that part of the motion to dismiss the second affirmative defense
of failure to mitigate damages is denied as the motion papers fail to establish as a matter of law
that plaintiff acted reasonably to mitigate any damages. In fact, there was no evidence presented
as to what plaintiff did, if anything, to mitigate her damages.
This constitutes the full decision of the court. Any requested relief that has not been specifically
granted in this decision is denied.
6/16/2025
DATE
•
CHRISTOPHER CHIN, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
154184/2023 TORRES, KENYA vs. OCCHINO, ANTHONY L. ET AL Page 5 of 5
Motion No. 001
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