In this action for personal injuries arising out of a motor vehicle/pedestrian accident, the plaintiffs move for partial summary judgment "pursuant to CPLR 3212 . on the issue of liability (inclusive of the issues of negligence, proximate cause and serious injury)."

The defendants City of Rochester, Vincent Paolotto and Christian Bryant (the "City," or "the City defendants") cross-move for "an Order granting summary judgment to the extent of determining as a matter of law and fact that Plaintiff, Craig S. Levin, was negligent with regard to the occurrence of the motion vehicle accident which by, among other things, violating Vehicle and Traffic Law § 1112(c) . . ."

For the reasons below, the motion by plaintiffs for summary judgment finding the City defendants negligent and that their negligence was a proximate cause of the accident injuries is GRANTED.

The cross-motion of the City defendants for summary judgment finding the plaintiff Craig Levin negligent is DENIED.

The following facts are not disputed. They are taken from unrebutted contentions in the parties' Statements of Material Facts, from video footage (NYSCEF No.s 180-184), deposition transcript and sworn statements of the parties and witnesses (Ronieka Burns, a driver stopped on Chestnut Street, and Rochester Police epartment officer Michael Koerner, who investigated the accident), medical reports (NYSCEF #s 200, 203, 205), and documents related to aninternal review of the accident conducted by the City of Rochester (NYSCEF 3s 193-199).

The motor vehicle accident, which resulted in the plaintiff Craig Levin ("Craig") sustaining horrific injuries, including traumatic brain injury and bilateral lower leg amputations, occurred on December 19, 2018. At the time of the accident plaintiff was 60 years old and employed as a lawyer with the Mental Hygiene Legal Service agency, whose office is located within the building that is the home of the Appellate Division of the Supreme Court, Fourth Department, on the northwest corner of East Avenue and Chestnut Street in the city of Rochester.

As recorded by a video camera (NYSCEF # 180) on the Rochester Gas and Electric building near to the intersection where the accident occurred (Craig has no recollection of the accident) Craig purchased something from a sidewalk hot dog vendor located in front of the Rochester Gas and Electric ("RG and E") building located at the southeast corner of the intersection of East Avenue and Chestnut Street, and diagonally across the intersection from the offices for the Mental Hygiene Legal Service. He then walked west on the sidewalk on the south side of East Avenue. When he came to the intersection of East Avenue and Chestnut Street, he stopped for about 15 seconds, waiting for the light to change, before entering the crosswalk.

As he came to the crosswalk and stopped, the light for traffic proceeding west on East Avenue was red. The crosswalk light for persons crossing Chestnut Street indicated "Don't Walk."

A City of Rochester garbage truck, driven by its employee Vincent Paolotto who it is undisputed was working within the scope and course of his employment, was near the end of its route, having picked up trash from multiple commercial locations. Unloaded it weighed 39,600 pounds. It was travelling west on East Avenue. As recorded by a video camera (NYSCEF # 182) positioned on a Rochester Transit Service ("RTS") bus, also travelling west on East Aveue, before reaching the intersection of Chestnut and East Avenue, and just beyond the the intersection of South Union Street and East Avenue, the garbage truck overtook and passed the RTS bus going into the opposite lane of traffic and against a double-yellow lane divider. The garbage truck then continued west and came to complete stop at the intersection of East Avenue and Chestnut. The light was red for west bound traffic. The garbage truck was stopped for approximately 17-18 seconds behind a minivan in the left most travel lane of East Avenue. Behind it was the Rochester Transit Service ("RTS") bus and other vehicles.

As the garbage truck was stopped, waiting for the light to change, it did not have its left-hand turn signal activated,^[FN1] nor did the minivan in front of the garbage truck. As recorded by [*3]video, at no time during its turn did the garbage truck have the left-hand turn signal activated.

The light changed, giving the vehicles travelling west on East Avenue a solid green as well as a left hand turn green arrow. The minivan ahead of the garbage truck proceeded straight through the intersection.

The driver of the garbage truck proceeded to turn left and into the southbound lanes of Chestnut Street.

When the green arrow light for westbound traffic on East Avenue to turn left onto Chestnut Street appeared, and the garbage truck began its turn, Craig stepped off the curb and proceeded to walk across Chestnut Street in the crosswalk.

The pedestrian control signal for Craig was signalling "Don't Walk" as Craig stepped off the curb.

When he was two-thirds across Chestnut—in other words, wholly within the lane for southbound traffic on Chestnut—he was struck by the garbage truck.^[FN2]

Witness Roenika Burns was in a vehicle stopped in the northbound lane on Chestnut Street. She testified in a deposition (and her observations are uncontradicted) that Craig waited while the light for vehicles on Chestnut was yellow, waited and looked around, and then crossed. She went on to state that "And then the guy (Craig) started crossing the street and then garbage turned. And then it was like slow motion what happened."

At the time the garbage truck struck Craig, Craig had been in the crosswalk for approximately 8 seconds. He had taken 14-15 steps from the curb.

Approximately 10 seconds elapsed from the time the green arrow appeared to the impact.

The garbage truck struck Craig in the southbound lane of Chestnut Street while Craig was in the crosswalk.

The driver of the garbage truck never saw Craig (Dep. of Vincent Paolotto, Exhibit K at 53:6-18 [NYSCEF # 188]). The driver's first notice that anything out of the ordinary had happened was when he heard a "thump—like a bang on the side of the truck, and then some lady started screaming . . ." In a sworn written statement given to a Rochester Police Department officer, he averred, "I have no idea where he was coming from. When I made the turn there was nobody crossing." (Exhibit M, NYSCEF # 190).

For his part, Craig has no recollection of the accident.

The City's "Accident Review Panel ("ARP") conducted an investigation to determine the cause of the accident and whether it was "preventable," which it defined in its "Stnadards of Conduct for Non-Uniformed Bargaining Unit City Employees" (NYSCEF 196) as "A motor vhiecle accident wherein the driver failed to do everything reasonably possible to prevent the accident."

Two hearings were held, for which Mr. Paolotto failed to appear (although he had been given notice), following which the ARP that the accident was the result of an "unsafe turn" and [*4]"nsafe operation" of the garbage truck (NYSCEF #s 193-195, including deposition transcript of Jeffrey Moore). A disciplinary due process hearing was held, for which he did appear, and then Department of Environmental Services Commissioner Norman H, Jones did a "careful review," following which the City terminated Mr. Paolotto because he "failed to follow work policies and procedures to exercise reasonable care in the operation of your vehicle which resulted in the serious injury of a pedestrian gross negligence."(NYSCEF # 195).

Plaintiffs' Motion

Plaintiffs argue that the City was negligent as a matter of law in that its employee, the driver of the garbage truck, violated his statutory and common-law duty in failing to see the pedestrian-plaintiff at any time, including before commencing his turn and at any time after that and up to (and even after) the point of impact, and that its negligence was a proximate cause of the accident and injuries.

It is well settled that "[t]he proponent on a summary judgment motion bears the initial burden of establishing entitlement to judgment as a matter of law by submitting evidence sufficient to eliminate any material issues of fact" (Oddo v City of Buffalo, 159 AD3d 1519, 1520 [4th Dept 2018]; Rice v City of Buffalo, 145 AD3d 1503, 1504-1505 [4th Dept 2016]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

"Once [that] showing has been made . . . , the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Kwitek v Seier, 105 AD3d 1419, 1421-22 [4th Dept 2013] [internal quotations and citations omitted]).

Where a pedestrian claims injury as a result of an accident with a motor vehicle, the plaintiff has the initial burden of establishing the defendant breached a statutory or common-law duty of care, that the breach was a proximate cause of injury, and that the plaintiff sustained a "serious injury"^[FN3] (Rodriguez v City of New York, 31 NY3d 312, 324-25 [2018]; McCarthy v Hameed, 191 AD3d 1462 [4th Dept 2021]; Bush v Kovacevic, 140 AD3d 1651 [4th Dept 2016]). A plaintiff need not sustain the burden of demonstrating the absence of his or her own comparative negligence to be entitled to summary judgment on liability (Rodriguez v City of New York, 31 NY3d 312, 324-25 [2018]; see also Lowes v Anas, 195 AD3d 1579, 1582 [4th Dept 2021]).

Here, the driver of the City's garbage truck had both a common-law duty and a statutory duty to "see what is there to be seen."

"It is well settled that a driver has a common-law duty to see that which [should have been] seen [as a driver] through the proper use of his [or her] senses" (Strassburg v Merchants Automotive Group, Inc., 203 AD3d 1735, 1736 [4th Dept 2022], quoting Luttrell v Vega, 162 AD3d 1637, 1638 [4th Dept 2018] [internal quotation marks omitted]).

The common-law duty is captured in the New York Pattern Jury Instructions:

"A driver is charged with the duty to see that which under existing circumstances (he, she) should have seen by the proper use of (his, her) senses. If you find that (AB, CD) did not observe that which was there to be seen you may find that (he, she) was negligent in failing to look or in not looking carefully" (PJI 2:77).

The City's driver also had "a statutory duty to use due care to avoid colliding with pedestrians" (Barbieri v Vokoun, 72 AD3d 853, 856 [2d Dept 2010], citing Vehicle and Traffic Law § 1146).

Vehicle and Traffic Law § 1146 reads:

(a) Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.

"[A] defendant's unexcused violation of the Vehicle and Traffic Law constitutes negligence per se," in other words, as a matter of law (Lowes v. Anas, 195 AD3d 1579, 1581 (4th Dept 2021). Where the plaintiff-pedestrian submits evidence in support of a summary judgment motion that the defendant-driver never saw the plaintiff before impact, "plaintiff[ ] established [his] prima facie entitlement to judgment as a matter of law on the issue of liability" (Lowes v Anas, 195 AD3d 1579, 1583 [4th Dept 2021], quoting Higashi v M & R Scarsdale Rest., LLC, 176 AD3d 788, 790 [2d Dept 2019]).

Here, the driver of the garbage truck violated both his common-law duty and his statutory duty. In support of their motion, plaintiffs submitted the deposition transcript (NYSCEF # 188) and sworn statement (NYSCEF # 190) of the driver of the garbage truck, the statement under oath of Roneika Burns, the witness in a nearby vehicle (NYSCEF # 189), and the deposition testimony of co-defendant Christian Bryant (NYSCEF # 243), the City employee riding in the passenger seat of the garbage truck at the time of the accident.

Mr. Paolotto never saw Craig at any time, not when Craig was on the curb waiting for the light to change nor when he was walking in the crosswalk. Ms. Burns stated that she witnessed Craig stepping down off the curb and into the crosswalk and the subsequent unfolding of the gruesome events. Christian Bryant, riding in the passenger seat of the garbage truck, testified that he did not observe the driver of the garbage truck "check" his "blind spots."

Multiple video recordings submitted in support of the motion, if nothing else, make it apparent that the driver of the garbage proceeded to make a left-hand turn as if he never saw Craig crossing Chestnut Street, not slowing down or altering his path in any way. The videos also show no obstruction that would have impeded the vision of the driver of the truck as Craig entered the crosswalk.

Accordingly, the City through the actions of its employee-driver violated its common-law duty to see what was there to be seen.

It also violated its statutory duty under Vehicle and Traffic § 1146, to act with due care to avoid a collision with a pedestrian, as well as under Vehicle and Traffic § 1111 (a) (1), which requires a vehicle turning left on a green signal to yield the right of way to a pedestrian in a crosswalk. The driver of the garbage truck also violated Vehicle and Traffic § 1163 (b), in failing to activate his left-hand turn signal in advance of his turn, as evidenced by the testimony of the witness Ronieka Burns as well as the video taken from the Rochester Gas and Electric building.

Thus, viewing the evidence in the light most favorable to the City and affording it the benefit of every reasonable inference (Uhteg v Kendra, 200 AD3d 1695 [4th Dept 2021]), it is held that the plaintiffs have established entitlement to judgment as a matter of law on the issue of the City's negligence.

Plaintiffs have also established entitlement to judgment as to proximate cause. It is [*5]obvious and needs no elaboration to hold that the driver of the garbage truck, had he seen Craig walking in the crosswalk on a direct line into the path of the truck, would have exercised "due care" and stopped or at least sounded his horn, as he was required to do by Vehicle and Traffic law §1146. As noted above, it is also clear from the video footage that the garbage truck struck Craig. Craig did not walk into the side of it.

Further, contrary to defendant's assertion that the failure to signal his turn had nothing to do with the accident, a reasonable inference can be drawn that Craig started crossing Chestnut Street against a solid "Don't Walk" signal because he saw no turn signal on the garbage truck or the van ahead of it and assumed the garbage truck was heading straight through the intersection, following the van.

Accordingly, again viewing the evidence in the light most favorable to the City and affording it the benefit of every reasonable inference (Uhteg v Kendra, id.), it is held that the plaintiffs have established entitlement to judgment on the issue of proximate cause.

The burden then shifts to the City to show a material issue of fact. The City contends that Mr. Paolotto was not negligent because his ability to see anything to his left was impeded by a blind spot created by the "A-pillar" of the cab and by the driver's side view mirror, and that he "allowed" for the blind spot by checking for pedestrians entering the crosswalk on the south side of the intersection and for vehicle traffic as he began his turn.

However, whether the "blind spot" obstructed his view is irrelevant, because he could not say whether or not he even checked his blind spot. In his testimony, asked what he was looking at as he came to a stop at the intersection, he could only say "Then I was probably looking all around . . . waiting for the light to turn." Such assertion constitutes speculation and is not proof in an admissible form.

Asked if he saw anything, he stated "I don't remember." He later stated that he "checked" his blind spot, and saw no one (p. 102), but that "The blind spot goes away" as he is turning. It's "there for a tenth of a second and then its gone." (p. 97).

Thus, his rebuttal fails to provide an excuse for failing to see Craig crossing the street.

Even if the blind spot did impede Mr. Paolotto's vision, the existence of a "blind spot" under New York law is not a "non-negligent" (E.B. v Gonzalez, 208 AD3d 618, 619 [2d Dept 2022]) excuse for "failing to see what is there to be seen" (see Freitag v Village of Potsdam, 155 AD3d 1227, 1230 [3d Dept 2017]; McDonald v State of New York, 176 Misc 2d 130, 143 [Ct Cl 1998]).

Accordingly, the City has not sustained its burden of establishing a material issue of fact on the issues of negligence and proximate cause. Plaintiffs' motion for summary judgment as to the liability of the City is GRANTED.^[FN4]

City's Cross-Motion

The City defendants cross-move for summary judgment as to negligence (but apparently not for proximate cause), arguing that Craig was negligent as a matter of law for "among other [*6]things, violating Vehicle and Traffic Law § 1112(c) . . ."

In support of their motion the City defendants submitted no admissible evidence, but merely reference plaintiffs' motion papers. Counsel for the City writes: "It is clear from the Plaintiffs' motion papers that they admit that Mr. Levin was crossing against the "Don't Walk" pedestrian signal controlling pedestrian traffic on the south side of the intersection when he entered the crosswalk . . ." As to "other things," he writes that "There is no competent proof that we (sic) was checking behind him to his right for any westbound East Avenue traffic with left directional signals activated."

Both arguments fail to establish entitlement to judgment as a matter of law.

First of all, it is not clear, and the City has not established, that the pedestrian signal was showing "Don't Walk" at the time of the impact.

Paragraph 11 of the City's Statement of Material Facts reads that "Mr. Levin left the southeast curb and entered the crosswalk against a steady, "Don't Walk," red hand signal."

For his part, Craig states in his Statement of Material Fact that as he began (emphasis added) to cross Chestnut Street "the 'Don't Walk' sign had not yet changed to 'Walk.' "

In the City's Response to Statement of Material Facts, it states that "the allegation that the 'Don't Walk' signal on the south side of the intersection had not changed as Mr. Levin began to cross the street is accurate, as the referenced video footage establishes and as Officer Koerner's deposition testimony (pp. 198-201) corroborates."

The video footage from the Rochester Gas and Electric building (NYSCEF # 180) shows Craig stepping off the curb and crossing Chestnut Street and being hit by the garbage truck. The time of the impact is 1:05:26:682.

The RTS bus video footage (NYSCEF # 182), lo oking through its front window, shows the traffic signal turning solid green and green arrow, and then the garbage truck moves forward from the intersection of Chestnut and East Avenue. As Craig is in the crosswalk but in the northbound lane of Chestnut, the pedestrian signal shows red. As the garbage truck turns it blocks the camera's ability to capture the view of the pedestrian signal and the signal is not visible during the time when Craig is crossing over the southbound lane of traffic (the lane the garbage truck is turning into). As the bus makes its turn, the traffic signal continues to be visible. It shows a solid green and a green arrow, until the 1:05:27 mark, at which point it switches to a yellow arrow.

Rochester Police Officer Michael Koerner investigated the accident and gave a deposition (NYSCEF # 192). He wtestifed that he went back to the scene on December 20, 2018 and watched the crossing walk signals. He observed that when the light for westbound traffic turns green, it shows a green left hand turn arrow as well. During the time the arrow is lit the pedestrian signal shows "Don't Walk." The green arrow is lit for, he seems to say, ten seconds. (Koerner tr at 99, lines 4-13).

Q. What did you do — describe to me the process, what you did when you said you observed the light and light cycle.

A. What I did is I went back and parked my car on the north side of the street on East Ave. at Chestnut and took my — took my watch — or counted and watched for ten seconds from — the light cycle of the left turn arrow, the green light and the crosswalk. I sat there for a little bit to make sure — I did that a few times.

Officer Koerner does not say what signal was shown on the pedestrian signal ten seconds into the cycle. He does not say what color the pedestrian signal is showing during the entire time [*7]the green arrow is lit.

Moreover, the RTS video shows the traffic signal turning green at 1:05:17. The impact as shown on the video from the Rochester Gas and Electric building occurs at 1:05:26.755. Nearly ten seconds (or 25 hundredths of a second short of ten seconds) elapsed from the time the arrow lights up until the point of impact, and Officer Koerner seems to say, although it is not clear, that ten seconds, clocked on his watch, is how long it takes the green arrow to go off.

Thus, the evidence submitted by the City does not show with any certainty, even viewed in the most favorable light, what color the pedestrian signal was showing at the moment of impact. It cannot be stated with any certainty, and not sufficiently to justify entitlement to judgment, whether Craig was compliant with the Vehicle and Traffic law at the moment of impact (see Durr v Capital Dist. Transportation Auth., 198 AD3d 1238, 1241 [3d Dept 2021]), in other words, whether the light had turned to "Walk," however much he may have been in violation when he left the curb. On that basis alone, the defendant fails to establish entitlement to judgment as a matter of law.

With regard to the City's assertion that Craig has no "competent proof" to show he was checking for vehicles turn signals, "[I]t is well settled . . . that a party moving for summary judgment must affirmatively establish the merits of its cause of action or defense 'and does not meet its burden by noting gaps in its opponent's proof' " (Nick's Garage, Inc. v GEICO Indem. Co., 165 AD3d 1621, 1622 [4th Dept 2018]; Great Lakes Motor Corp. v. Johnson, 132 AD3d 1390, 1391 [4th Dept. 2015]. Thus, the City cannot rely on the supposed lack of proof that Craig did not "look around."

Even if the evidence is sufficient to establish that Craig was in the southbound lane of Chestnut Street against a "Don't Walk" signal, and was further negligent in failing to "look around," thus entitling the City to judgment as a matter of law, Craig has presented evidence that creates a material issue of fact, namely, that Craig stepped off the curb because he had reason to believe that the garbage truck was proceeding straight through the intersection and not turning. As noted, the video from the Rochester Gas and Electric building and from the RTS bus, and the testimony of witness Roenika Burns, show the garbage truck never activated its turn signal at any time before or after its turn. Ms Burns testified that Craig "waited for a while. He was there—like when the light was yellow, he waited and looked around and then he crossed." (Leslie Aff., NYSCEF # 189, at 4:16-25, 5:1-4.). Although the video from the Rochester Gas and Electric building does not offer a clearly-defined view of Craig as he is at the curb, it does appear, and the inference can be reasonably be made (see Babino v City of New York, 234 AD2d 241, 242 [2d Dept 1996]) that Craig "looks around" before stepping off the curb. Thus, it was reasonale for Craig, seeing no turning signal, to believe it was safe to proceed across Chestnut Street.

Thus, "(a) triable issue of fact exists whether the conduct was reasonable under the circumstances, thereby excusing (a) violation of the statute (Arricale v Leo, 295 AD2d 920, 920 [4th Dept 2002]; see also Espinal v Sureau, 262 AD2d 523, 524 [2d Dept 1999]: "(A) violation of a (Vehicle and Traffic law) statute may be excused if he exercised reasonable care in an effort to comply . . . . The record in this case presents a question of fact for a jury as to whether the conduct was reasonable under the circumstances."

There is also evidence of Craig's "custom and habit," which was to look to his right to see if traffic was turning across the crosswalk. Here "custom and habit" are admissible (see Matter of Fassano v. State of New York, 113 AD2d 885 [3d Dept 1985])., because Craig has [*8]demonstrated by clear and convincing evidence that he sustained a memory loss. The assertion in the Plaintiff's Statement of Material Fact (NYSCEF # 205) that Craig sustained a "(a) traumatic brain injury" is unrebutted. The University of Rochester Medical Center Inpatient Record of 3/19/2017 (NYSCEF # 204) shows he presented for "cognitive decline." Craig testified at his deposition (NYSCEF # 186) that the has no recollection of the accident.

At the trial of the matter, the jury verdict sheet would read as follows:^[FN5]

In a prior proceeding it was determined that the City of Rochester, through the actions of its employee, Vincent Paolotto, was negligent and that its negligence was a substantial factor in causing the accident. The City was found negligent for failing to see what was there to be seen, namely, that the plaintiff Craig Levin walking in the crosswalk. It was further determined that the City's failure to see Craig was a substantial factor in causing the accident and subsequent injuries.

You are then to answer the following questions:

1. Was the plaintiff Craig Levin negligent?

2. Was plaintiff Craig Levin's negligence a substantial factor in causing his own injuries?

5. What is the percentage of fault of the defendant and what is the percentage of fault of the plaintiff?

(see Rodriguez v City of New York, 31 NY3d 312, 324 [2018]: "Where plaintiff has already established defendant's liability as a matter of law, granting plaintiff partial judgment eliminates the first two questions submitted to the jury, thereby serving the beneficial purpose of focusing the jury on questions and issues that are in dispute."

Plaintiff's motion for summary judgment as to the liability of the City for "serious" injuries sustained by the plaintiff is GRANTED. Defendant's cross-motion for summary judgment as to the negligence of the plaintiff Craig Levin is DENIED.