Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion for summary judgment:

In this motor vehicle negligence action, co-defendants, Damian Bonillaarias ("Bonillaarias") and Emmanuel De Los Santos ("De Los Santos"), move, pursuant to CPLR § 3212, for summary judgment and dismissal of the complaint and any crossclaims against them asserting that their double-parked vehicle was not a proximate cause of the underlying accident. Plaintiff, Sonjoy Sarker ("Plaintiff" or "Sarker"), opposes co-defendants' application and cross-moves for partial summary judgment declaring co-defendants, GSP Freightlines, Inc. ("GSP"), and Janpal Singh ("Singh"), liable for damages arguing that Singh made an improper lane change that caused the accident. For the reasons stated below, both the motion and the cross-motion are denied.

Plaintiff's cause of action stems from personal injuries he allegedly sustained on June 25, [*2]2021, at Madison Avenue at or near its intersection with East 127th Street in New York County, when a semi-tractor-trailer truck operated by Singh and owned by GSP came into contact with his vehicle purportedly causing his vehicle to make a second contact with Bonillaarias's double-parked vehicle, in which De Los Santos was either the operator or a passenger at the time of incident (NYSCEF Doc Nos. 22, 42). In short, Bonillaarias and De Los Santos have moved for summary judgment asserting that, as a stationary double-parked vehicle, "they merely furnished the condition or occasion for the occurrence of the event but was not one of its causes" (Barry v Pepsi-Cola Bottling Co. of NY, Inc., 130 AD3d 500 [1st Dept 2015]; Aff in Supp at ¶ 22). Plaintiff opposes their motion while cross-moving for the same relief arguing that the accident was proximately caused by Singh's improper lane change, which prompted the initial contact that set the chain of unfortunate events in motion (Aff in Opp at ¶ 3).

The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law (Giuffrida v Citibank Corp., 100 NY2d 72 [2003]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (Winegrad, 64 NY2d at 853).

A full complement of supporting documents was included in support of the motion and cross-motion including the deposition transcripts of the parties (NYSCEF Doc Nos. 24-26), a certified copy of the relevant police report (NYSCEF Doc No. 22), and links to videos purporting to depict the accident (NYSCEF Doc Nos. 29, 30). The broader picture that emerges from these submissions is that, in the location of the accident, Madison Avenue is a one-way thoroughfare with two lanes for travel and a parking lane, all heading in the same direction. Other than that, the evidence, in the view of this Court, is inconclusive and the question of liability should be referred to the trier of fact to determine.

At the threshold, questions of facts arise as to whether Bonillaarias's double-parked car was moving or stationary at the time of the accident. De Los Santos's testimony on the subject was confusing:

Yes . . . I saw the car. It was coming to me. It was going to hit my door and I tried to inch a little bit back. I remember there was two girls sitting there. They were drunk and when I tried to move back a little bit, I stopped. I remember they were right there. If I moved all the way back, they were going to hit the two girls sitting down on the bus (NYSCEF Doc No. 26, 15:2-12).

He further testified that the double-parked car he was in was in "park" when the accident happened, but the motor was on (id. at 15:13-17). He later testifies declaring that he was seated in the passenger side, looking in the left side mirror "for parking" when he saw the accident (id. at 16:9-16). Then again, a few lines later, he says he was in the driver's seat when he witnessed the accident (id. at 16:17-24).

There are also questions of facts as to whether either Singh or plaintiff entered the other's lane of travel. Singh testified that he saw the double-parked car approximately 50 feet away as he approached, he applied his brakes to stop the truck. Although he intended to change lanes, he never actually did so (NYSCEF Doc No. 54 at 42:9-12). Singh gave a statement to police, however, stating that "while traveling northbound on Madison Ave in the right lane he went to change lanes to avoid [*3][the double-parked vehicle] and hit [plaintiff's vehicle]" (NYSCEF Doc No. 22). Also, De Los Santos gave his version of the accident, stating:

In the mirror, the taxi that came to the truck. The truck never moved. The truck was going straight, and you see me standing right there on the right side and the truck was right in the middle, and the taxi driver came in the right side. The taxi driver didn't have nobody in front of him. No cars. Nothing. You can tell he was going straight, and I always pay attention to everything. That's me. Always pay attention to everything (Id. at 17:9-19).

When asked if he saw "the two vehicles hit each other", he testified that "[y]es. I saw it. The taxi driver made a right" (id. at 17:24-25; 18:1-2).

The Bonillaarias/De Los Santos movants fail to sustain their burden for summary judgment. A jury could decide their double-parked vehicle, whether or not moving at the time of incident, served as a proximate cause of the accident. There are certain instances where only one conclusion may be drawn from the established facts and the question of legal cause may be decided as a matter of law (Lebron v NYCHA, 158 AD3d 503, 505 [1st Dept 2018]. Yet, in cases involving double-parked cars where the accident involving a moving vehicle would not have happened but for the improper parking of the second vehicle, courts have declined to rule as a matter of law on the question of whether the violation of a traffic or parking regulation was a proximate cause of the accident (White v Diaz, 49 AD3d 134, 139 [1st Dept 2008]). This is equally true had De Los Santos been backing up GSP's vehicle while partly in the truck's lane immediately prior to the accident. Such a circumstance could not be said merely to have "furnished the condition or occasion for the occurrence of the event [without being] one of its causes" (Barry v Pepsi-Cola Bottling Co. of NY, Inc., 130 AD3d 500 [1st Dept 2015]. Hence, the motion for summary judgment as filed by Bonillaarias and De Los Santos is denied.

Plaintiff has also failed to meet his burden of showing entitlement to summary judgment against the GSP/Singh vehicle. Although the Court acknowledges Singh's statement to police that he moved into plaintiff's lane of travel, his testimony upon deposition as well as that of De Los Santos suggest that no such attempt to change lanes may have occurred. When viewed in a light most favorable to the non-moving party, the Court is constrained to consider the possibility that plaintiff's vehicle may have been moving into Singh's lane of travel immediately prior to the incident (see Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340 [2011] [explaining that it is "[v]iewing the facts in the light most favorable to defendants, as we must when we consider plaintiff's summary judgment motion"]; see also Small v NYCTA, 225 AD2d 471, 472 [1st Dept 1996][stating that "it was for the jury to resolve the issues of credibility"]; Rose v Da Ecib USA, 259 AD2d 258, 259 [1st Dept 1999][finding that "[t]he motion court's proper role is merely issue finding, not issue determination"]).

Accordingly, it is hereby:

ORDERED that co-defendants Damian Bonillaarias and Emmanuel De Los Santos motion for summary judgment and the dismissal of plaintiff's complaint and any crossclaims, pursuant to CPLR § 3212, is DENIED; and it is further,

ORDERED that plaintiff's motion for summary judgment, pursuant to CPLR § 3212, is DENIED; and, it is further,

ORDERED that co-defendants Damian Bonillaarias and Emmanuel De Los Santos shall serve a copy of this Order with Notice of entry within 30 days of entry of this order.

The foregoing constitutes the Decision and Order of the Court.