We represent many individuals who have been injured in motorcycle accidents. Time and time again, cars fail to notice motorcyclists driving lawfully upon the road and cut in front of them, merge directly into their lane or force them off the road. Time and again, it is the motorcyclist alone who suffers injury from the other driver’s negligence. In subsequent litigation, it is time to use the negligent driving against the drivers. We have found that moving for summary judgment on the issue of liability is an aggressive and effective way of protecting our clients’ rights. One classic scenario in which to move for summary judgment involves a driver taking a left-hand turn directly in front of an oncoming motorcycle. The following recent case for MSG exemplifies this scenario.
It was about 6:00 pm on a sunny summer evening. Our client was riding his motorcycle to his home in the Bronx, New York, following work. He was looking forward to a meal with his family. The roads were dry. Plaintiff was driving up a hill at about 30 mph. An SUV was double-parked facing down the hill in the opposite direction. The driver was engaged in conversation with someone on the sidewalk. He was not paying attention to the road. When our client was about a car length away from the double-parked SUV, it suddenly swung an illegal U-turn over a double yellow line and stopped directly in front of our client’s oncoming motorcycle. Our client had no time to avoid the accident and hit the side of the vehicle, suffering grievous injuries including a fractured pelvis requiring surgery.
We brought a lawsuit against the driver of the SUV and its insurance company. Despite the obvious fault against the SUV, the insurance company would not make an offer of reasonable compensation for our client and the matter was litigated. Following depositions, we immediately moved for summary judgment against the SUV asking the court to find, as a matter of law, that the SUV was responsible for the accident.
In the seminal case of Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability. The Court held: “when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims properly adjudicated.” Id., 362 N.Y.S.2d at 133 [emphasis added].
In this circumstance, the SUV driver took an illegal U-turn and drove his SUV directly into the opposite lane of traffic when it was not safe to do so. Drivers also have a common law duty to see “that which out to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd Dep’t 1986). Failure to do so is negligence as a matter of law. See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2nd Dep’t 2002). In the instant matter, although defendant claims that he looked for oncoming traffic, he either failed to see or ignored plaintiff’s motorcycle which, by all accounts, could only have been several car lengths away. See, Kirchgaessner v. Hernandez, 40 A.D.3d 437, 836 N.Y.S.2d 170 (1st Dept. 2007) (driver’s statement that he never saw the pedestrian plaintiff in a crosswalk despite being observant is incredible as a matter of law). We argued that the defendant SUV driver’s failure to see plaintiff and, further, to pull directly into our client’s path of travel, was patently negligent.
In addition, we argued to the court that our client bore no culpable conduct for the accident. The law is clear that plaintiff is not charged with the obligation of anticipating defendant’s illegal and dangerous decision to take a U-turn in front of oncoming traffic. In Williams v. Simpson, 36 A.D.3d 507, 508, 829 N.Y.S.2d 51 (1st Dept. 2007), the First Department held, “a driver in his proper lane is not required to anticipate that an automobile going in the opposition direction will cross-over into his lane of traffic (Caban v. Vega, 226 A.D.2d 109, 111, 640 N.Y.S.2d 58 [1996]. Such a cross-over scenario presented [the driver] with an emergency situation not of his own making (See, Williams v. Econ, 221 A.D.2d 429, 633 N.Y.S.2d 392 [1995]). In cases where the cross-over and collision occur almost instantaneously, the driver in the proper lane cannot be considered negligently responsible for any part of the accident. See, Gonzalez v. City of New York, 295 A.D.2d 122, 742 N.Y.S.2d 301 (2002) . . . summary judgment is appropriate in these circumstances. See, Eichenwald v. Chaudhry, 17 A.D.3d 403, 794 N.Y.S.2d 391 (2005); Lyons v. Rumpler, 254 A.D.2d 261, 678 N.Y.S.2d 142 (1998).”
In Gajjar v. Shah, 31 A.D.3d 377, 817 N.Y.S.2d 653 (2d Dept. 2006), the Appellate Division affirmed the decision to grant summary judgment in favor of a defendant who was struck by plaintiff’s vehicle after plaintiff had crossed over from the opposite direction of travel. The Court held, “a driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic.” The court further reasoned that any claim that the defendant driver an opportunity to avoid the accident was speculative and could not raise a triable issue of fact. “[The] reaction- staying in his own lane and slamming on his brakes- was reasonable as a matter of law under the circumstances, which were not of his making.” Id. Moreover, “any speculation” that the vehicle struck by the offending cross-over vehicle somehow contributed to the accident or should have taken some action to prevent it is insufficient to defeat the motion for summary judgment. Cheung, 802 N.Y.S.2d at 208; see, also, Boos v. Bedrock Materials, 16 A.D.3d 447, 791 N.Y.S.2d 621); Guevara v. Zaharakis, 303 A.D.2d 555, 556, 756 N.Y.S.2d 465 (2nd Dept. 2003) (party that crossed-over the proper lane of traffic was responsible for the accident as a matter of law since, as a result of this negligent act, the opposing party had been faced with an emergency situation and was under no obligation to use his “best judgment”); Velez v. Diaz, 227 A.D.2d 615, 643 N.Y.S.2d 614 (2nd Dep’t 1996).
To preclude summary judgment, a material fact must be in dispute. It is not enough to raise implausible scenarios in a bald-faced effort to create a factual issue. See, e.g., Zuckerman v. City of New York, 427 N.Y.S.2d 595, 562 (1980) (mere “expressions of hope or unsubstantiated allegations” are insufficient to defeat a motion for summary judgment); Benedikt v. Certified Lumber Corp., 60 A.D.3d at 798 (2nd Dept. 2009) (“feigned issues of fact . . . are insufficient to defeat a motion for summary judgment.”)
Fortunately, the Court agreed with us and granted summary judgment on the issue of liability against the defendant SUV. This exposed the defendant to significant risk, because at the time of trial a jury would be presented only with the question of damages. In effect, we would be handing the jury a blank check and asking them to write it to compensate our client. Recognizing the risk of trial, the defendant SUV capitulated and settled the case at a very significant sum, providing our client with some security for the future.