The following e-filed documents listed on NYSCEF (Motion #001) numbered 8-14, and 17-18 were read on this motion.

Upon the foregoing documents, and on consideration of oral argument conducted on October 20, 2022, Motion Sequence #001 is resolved and therefore, it is hereby,

ORDERED, that the Plaintiffs' request pursuant to CPLR § 3212 for partial summary [*2]judgment on the issue of liability against the Defendants is GRANTED.

ORDERED, that the Plaintiffs' request to dismiss the Defendants' affirmative defense that the Plaintiff was comparatively negligent is GRANTED.

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

A summons and complaint were filed with the clerk on April 19, 2022. A supplemental summons and amended complaint were filed on April 20, 2022. Issue was joined on behalf of both Defendants on August 4, 2022. Plaintiffs filed Motion Sequence #001 on August 23, 2022, seeking partial summary judgment on the issue of liability pursuant to CPLR § 3212 and seeking to dismiss the Defendants' affirmative defense that the Plaintiff was comparatively negligent. Defendants filed opposition on October 4, 2022 and plaintiff filed reply on October 11, 2022. Oral argument was heard by the court on Motion Sequence #001 on October 20, 2022.

This is a negligence action to recover damages for alleged serious injuries sustained by Plaintiff, R.I., a minor at the time of the accident, and loss of services sustained by her mother and natural guardian, Yana Khabinskaya, as a result of aforesaid accident. Plaintiff R.I. is now over 18 years of age.

Plaintiffs allege that on October 18, 2021, R.I. was a pedestrian in the designated crosswalk with a pedestrian walk sign in her favor when the accident occurred at the intersection of Richmond Avenue and Draper Place in Staten Island, New York. Plaintiffs allege that R.I. was struck from behind and knocked to the ground. Plaintiff indicates that she later learned that she had been struck by a motor vehicle allegedly owned by Defendant Financial Services Vehicle Trust and operated by Defendant Alyssa De Rosa.

Plaintiff has submitted Exhibit "E", which purports to be a video recording of the accident made by an New York City Police Department (Department of Transportation) camera.

A. Negligence per se and the Standard of Care

The Second Department has very recently reaffirmed that "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" (Ortiz v Zurita, 195 AD3d 734, 735 [2021] [internal quotation marks omitted]).

Further, "[a] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se" (Callahan v Glennon, 193 AD3d 1029, 1030 [2d Dept 2021] [internal quotation marks omitted). A driver has 'a statutory duty to use due care to avoid colliding with pedestrians on the roadway [pursuant to Vehicle and Traffic Law § 1146], as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses" (Lieb v Jacobson, 202 AD3d at 1073, quoting: Barbieri v Vokoun, 72 AD3d 853, 856 [2d Dept 2010]).

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting the amended police accident report, plaintiff's sworn affidavit, and uncontroverted Department of Transportation video footage depicting that the defendants' motor vehicle struck the plaintiff while she was a pedestrian in the crosswalk, crossing Richmond Avenue with the pedestrian control signal in her favor (see Gooden v EAN [*3]Holdings, LLC, 189 AD3d 1552 [2d Dept 2020]; Wray v Galella, 172 AD3d 1446, 1448 [2d Dept 2019]; Lazarre v Gragston, 164 AD3d 574, 575 [2d Dept 2018]). In opposition to the plaintiffs' prima facie showing, the defendants failed to raise a triable issue of fact as to whether the defendant driver had a non-negligent explanation for the accident (see Callahan v Glennon, 193 AD3d at 1031). "A driver who faces a green light has a duty to yield to the right of way to pedestrians who are lawfully within a crosswalk in accordance with the standard of care imposed by Vehicle and Traffic Law §1111 [a][1] (Lieb v Jacobson, 202 AD3d 1072, 1073). A driver also has a statutory duty to use due care to avoid colliding with pedestrians on the roadway pursuant to VTL §1146, as well as a common law duty to see that which he [or she] should have seen through the proper use of his [or her] senses" (Lieb v Jacobson, 202 AD3d at 1073, quoting: Barbieri v Vokoun, 72 AD3d 853, 856).

In Cuevas v Martinez (94 AD3d 803 [2d Dept 2012]), the Second Department affirmed the Supreme Court's decision granting summary judgment on the issue of liability in a case with an almost identical set of facts. The Court ruled that the Plaintiff met the burden by demonstrating that "Defendant driver, in violation of Vehicle and Traffic Law § 1112 [a], failed to yield the right of way to him as he was crossing the street within the crosswalk with the pedestrian "walk" signal in his favor, and that he [Plaintiff] was free from comparative fault, and the Defendants failed to raise a triable issue of fact, and failed to demonstrate that further discovery was warranted." Here, Plaintiff submits her affidavit and DOT camera video depicting her accident as proof of Defendants' failure to yield the right of way to her while she was crossing the street within the crosswalk with the pedestrian "walk" sign in her favor, thus, she is entitled to summary judgment on liability.

Moreover, the Second Department has continually explained that a Plaintiff establishes prima facie entitlement to judgment as a matter of law in the issue of liability by submitting evidence such as their affidavits, deposition transcripts, and witness affidavits, demonstrating that the defendant driver failed to yield a right of way to them, while they were crossing the street within the crosswalk with the pedestrian crossing signal in their favor (Tsang v New York City Transit Authority, 125 AD3d 648 [2d Dept 2015]). The appellate division has also long maintained that when the evidence establishes "prima facie that the defendant driver violated the Traffic Rules and Regulations of the City of New York (34 RCNY Section 4-03[a][1][l]) plaintiffs were free from comparative fault (citing Brown v Mackiewicz, 120 AD3d 1172 [2d Dept 2014]; Castro v NYC Transit Authority, 95 AD3d 1056 [2d Dept 2012]; Kusz v New York City Transit Authority, 88 AD3d 768 [2d Dept 2012]; Cuevas v Chavez, 94 AD3d 803 [2d Dept 2011]). The evidence submitted in this case, is even more substantial than that which was submitted by the Plaintiff in Tsang.

Further, Vehicle and Traffic Law § 1112 states that pedestrians facing a "walking person" sign may proceed across the roadway and shall be given the right of way by other traffic. Section 4-03 of the New York City Traffic Rules mirrors state law in that "vehicular traffic shall yield the right of way to pedestrians facing a "walking figure" signal to allow them to cross the roadway. VTL §1111 [a][l] states that "traffic facing a steady circular green signal . . . shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited." Finally, VTL § 1146 states that "every driver of a vehicle shall exercise due care to avoid colliding with any . . . pedestrian upon any roadway." It is clear to this court based upon the evidence provided that the defendant operator violated these statutes, and therefore summary judgment is appropriate on the issue of liability with respect to [*4]defendant Alyssa DeRosa. Summary judgment is also appropriate, in plaintiffs favor against defendant Financial Services Vehicle Trust, because as the owner of the vehicle being operated by defendant De Rosa, VTL § 388 maintains that a vehicle owner is liable, irrespective of the owner's fault, if the negligence of a driver operating the vehicle with the owner's permission is responsible for another's injury.

B. Summary Judgment is not Premature

The court finds that Defendant's contention that the plaintiff's motion for summary judgment is premature, is without merit. The Defendants have failed to proffer any reason to suggest that additional discovery may lead to relevant evidence. The mere hope and speculation that evidence necessary to defeat summary judgment might be uncovered during discovery, is an insufficient basis upon which to deny the motion (See CPLR § 3212 [f]; Hanover Insurance Co v Prakin, 81 AD3d 778 [2d Dept 2011]; Essex Insurance Co v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept 2010]; Peerless Insurance Co v Micro Fibertek Inc, 67 AD3d 978 [2d Dept 2009]; Gross v Marc, 2 AD3d 681 [2d Dept 2003]).

C. There are No Triable Issues of Fact

Additionally, Defendants opposition to Plaintiff's motion merely consists of an attorney's affirmation who was not a witness to the accident and is of no evidentiary value (See Browne v Castillo, 288 AD2d 415 [2d Dept 2001]). Defendants fail to raise any triable issues of fact, and it is clear to this court, based on the uncontroverted evidence submitted on the motion, that the Plaintiff was an innocent pedestrian, struck from behind, while crossing in a crosswalk with a pedestrian "walk light" in her favor, after she looked for traffic prior to beginning to cross the roadway. Therefore, summary judgment is appropriate.

D. The Defense of Comparative Negligence

Defendant's affirmative defense of comparative negligence must be dismissed as Plaintiff attests that she looked both ways before entering the crosswalk with the light in her favor when she was struck from behind by the defendant's vehicle. The Plaintiff was entitled to anticipate that the motorist "will obey the traffic law requiring him or her to yield" (See Goemans v County of Suffolk, 57 AD3d 478, 479 [2d Dept 2008]).

"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" (Tsyganash v Auto Fleet Mall Mgt, Inc, 163 AD3d 1033, 1033—1034 [2d Dept 2018]; see Rodriguez v City of New York, 31 NY3d 312 [2018]). "To be entitled to summary judgment on the issue of liability, " 'a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault' " (Balladares v City of New York, 177 AD3d 942, 943 [2d Dept 2019], quoting Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]; see Odetalla v Rodriguez, 165 AD3d 826, 827 [2018] see: E.B. v Gonzalez, 2022 NY Slip Op 04942 [2d Dept 2022]) Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Poon v. Nisanov, 162 AD3d 804, 808 [2d Dept 2018]).

"A pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield" (Huang v Franco, 149 AD3d 703, 703 [2d Dept 2017]). Nevertheless, a pedestrian who crosses in a crosswalk with the right-of-way may still be held comparatively negligent if he or she failed to notice an oncoming vehicle that could have [*5]been seen by the exercise of ordinary care (see Quintavalle v Perez, 139 AD3d 182 [1 Dept 2016]).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, that she looked both ways before crossing, and exercised due care, when the defendant failed to yield the right-of-way and struck her (see Lazarre v Gragston, 164 AD3d 574, 575 [2d Dept 2018]; Torres v Werner Bus Lines, Inc., 157 AD3d 624 [2d Dept 2018]; Hines v New York City Tr Auth, 112 AD3d 528, 529 [1 Dept 2013]; Perez—Hernandez v M. Marte Auto Corp, 104 AD3d 489, 490 [1 Dept 2013]). The plaintiff's affidavit was also sufficient to establish, prima facie, that the plaintiff was not at fault in the happening of the accident, as it demonstrated that she exercised due care by confirming that she had the pedestrian signal in her favor and by looking for oncoming traffic in all directions before entering the crosswalk and that she could not avoid it (see Dunajski v Kirillov, 148 AD3d 991, 992 [2d Dept 2017]; Gomez v Novak, 140 AD3d 831, 831 [2d Dept 2016]). In opposition to the plaintiff's prima facie showing, the defendant failed to raise a triable issue of fact as to their negligence or whether the plaintiff was comparatively at fault in the happening of the accident.

Accordingly, the court grants the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defense alleging comparative negligence.

It is hereby ORDERED that the Plaintiffs' request pursuant to CPLR § 3212 for partial summary judgment on the issue of liability against the Defendants is GRANTED, and it is further;

ORDERED, that the Plaintiffs' request to dismiss the Defendants' affirmative defense that the Plaintiff was comparatively negligent is GRANTED.

Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court.

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.