Preview
(FILED: KINGS COUNTY CLERK 0871972015 I1:39 AM INDEX NO. 508333/2013
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/19/2015
MCS/mb 508333/13E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
a xX
EMILY PRICE,
Plaintiff,
-against-
EILEEN TASBER, DONALD DUNBAR and SEAN D. Index No. 508333/2013E
BRADY,
NOTICE OF MOTION
Defendants FOR SUMMARY JUDGMENT
ee ee enn! xX
EILEEN TASBER, Justice Assigned:
Hon. Nancy T. Sunshine
‘Third-Party Plaintiff,
-against-
SEAN D. BRADY,
Third-Party Defendant.
meee nn nn nnn nnn nnnnnnmnnnnnnnnnne xX
MOTION MADE BY: MARTYN, TOHER, MARTYN and ROSSI
Attomeys for Defendants
EILEEN TASBER and DONALD DUNBAR
330 Old Country Road, Suite 211
Mineola, New York 11501
RETURN DATE AND TIME: September 22, 2015 at 9:30 A.M. or as soon
thereafter as counsel can be heard
PLACE: SUPREME COURT, COUNTY OF KINGS, to be
held at the Courthouse located at Submission Part
Room 227, 360 Adams Street, Brooklyn, NY
11201
SUPPORTING PAPERS: Affirmation of Megan C. Sampson and ExhibitsRELIEF REQUESTED:
ANSWERING PAPERS:
Dated: Mineola, New York
July 20, 2015
TO: FLANZIG AND FLANZIG, LLP
Attorneys for Plaintiff
323 Willis Avenue
P.O. Box 669
Mineola, NY 11501-0669
(516) 741-8222
annexed thereto
a)
b)
For an Order summary judgment in favor of
defendants, EILEEN TASBER and DONALD
DUNBAR, pursuant to CPLR §3212
dismissing the Complaint against defendants,
as they bear no liability for the subject accident
as a matter of law; and
Any further relief which this Court deems just
and proper.
All answering papers if any are to be served seven
(7) days prior to the return date or adjourned date
of this motion, pursuant to C.P.L.R. §2214(b)
Yours & etc., 2?
By:
C. Sampson
, TOHER, MARTYN and ROSSI
s for Defendants
EILEEN TASBER and DONALD DUNBAR
330 Old Country Road, Suite 211
Mineola, New York 11501
(516) 739-0000
AHMUTY, DEMERS & MCMANUS, ESQS.
Attomeys for Defendant
SEAN D. BRADY
200 LU. Willets Road
Albertson, NY 11507
(516) 294-5433SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
EMILY PRICE,
Plaintiff,
-against-
EILEEN TASBER, DONALD DUNBAR and SEAN D.
BRADY,
Defendants Index No. 508333/2013E
EILEEN TASBER, eee x AFF i IN
Third-Party Plaintiff,
-against-
SEAN D. BRADY,
Third-Party Defendant.
oe x
MEGAN C. SAMPSON, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true, upon information and belief, under
penalties of perjury:
1. I am associated with the law firm of MARTYN, TOHER, MARTYN and ROSSI,
attorneys for the defendants, EILEEN TASBER (“TASBER”) and DONALD DUNBAR
(“DUNBAR”). I am fully familiar with the facts and circumstances set forth herein based upon
my review of a file maintained in this office.
2. This affirmation is submitted in support of the within motion for an Order
pursuant to CPLR §3212 granting the defendants, TASBER and DUNBAR, summary judgment
and dismissing the Complaint against them as they bear no liability for the subject accident as a
matter of law.NATURE OF CASE
3. This action involves an alleged motor vehicle accident, which occurred on or
about October 5, 2013 on Lafayette Avenue at or near its intersection with Clinton Avenue, in
the County of Kings, City and State of New York, wherein the plaintiff allegedly sustained
personal injuries.
PROCEDURAL HISTORY
4. Plaintiff EMILY PRICE (“Plaintiff”) commenced this action by service of a
Summons and Complaint dated December 26, 2013. See Summons and Complaint, annexed as
Exhibit A. Defendant EILEEN TASBER (“TASBER”) interposed a Verified Answer on or
about March 24, 2014. See Verified Answer, annexed as Exhibit B. Plaintiff then served a
Verified Bill of Particulars dated April 3, 2014, annexed hereto as Exhibit C. On or about May
20, 2014, TASBER filed a Third Party Complaint, bringing in SEAN D. BRADY as a Third
Party Defendant. See Third Party Summons and Complaint, annexed hereto as Exhibit D. A
Supplemental Summons and Complaint was then filed, adding SEAN D. BRADY as Defendant.
See Supplemental Summons and Complaint, annexed hereto as Exhibit E. TASBER then filed a
Verified Answer to Supplemental Verified Complaint dated July 9, 2014 and annexed hereto as
Exhibit F. SEAN D. BRADY interposed a Verified Answer dated August 6, 2014. See
Verified Answer with Cross-Claims, annexed hercto as Exhibit G. A Supplemental Bill of
Particulars was served by Plaintiff dated August 18, 2014. See Supplemental Bill of Particulars,
annexed hereto as Exhibit H.
5. The parties signed a Stipulation dated November 6, 2014, aliowing plaintiff leave
to supplement plaintiff's Supplemental Summons and Complaint, to add Defendant, DONALD
DUNBAR. See Stipulation, annexed hereto as Exhibit I.6. A Second Supplemental Summons and Complaint, dated November 6, 2014, was
filed, annexed hereto as Exhibit J. Additionally, plaintiff filed a Supplemental Bill of
Particulars dated November 6, 2014. See Supplemental Bill of Particulars, annexed hereto as
Exhibit K. TASBER filed a Verified Answer to Second Supplemental Complaint dated
November 13, 2014 and a Verified Amended Answer to Second Supplemental Complaint. See
Verified Answer to Second Supplemental Complaint and Verified Amended Answer to Second
Supplemental Complaint, annexed hereto, collectively, as Exhibit L. TASBER and DONALD
DUNBAR filed an Amended Answer to Second Supplemental Verified Complaint dated
February 20, 2015. See Amended Answer to Second Supplemental Verified Complaint, annexed
hereto as Exhibit M.
7. Plaintiff filed a Note of Issue on June 29, 2015. Theretore, this motion for
Summary Judgment is timely.
ARGUMENT
POINT I
DEFENDANTS TASBER AND DUNBAR ARE ENTITLED
TO SUMMARY JUDGMENT AS THEY BEAR
NO LIABILITY FOR THE SUBJECT ACCIDENT
DUE TO NON-INVOLVEMENT
8. Summary judgment is proper when there are no issues of triable fact. See Alvarez
v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572 (1986). The proponent of a summary
judgment motion must make a prima facie showing of entitlement to judgment as a matter of
law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Jd
9. Further, it is well settled that where plaintiff cannot establish that defendant owed
plaintiff a duty and violated said duty such that it was a proximate cause of injuries to plaintiff,
plaintiff cannot establish a prima facie case of negligence against defendant, and defendant isentitled to summary judgment as a matter of law. See Pulka v. Edelman, 40 N.Y.2d 781, 358
N.E.2d 1019 (1976); Engelhart v. County of Orange, 16 A.D.3d 369, 790 N.Y.S.2d 704 (2d
Dep’t. 2005); Gordon v. Muchnick, 180 A.D.2d 715, $79 N.Y.S.2d 745 (2d. Dep’t. 1992).
10. ‘The Court is respectfully referred to the deposition transcript of Plaintiff. See
transcript dated November 5, 2014, annexed hereto as Exhibit N. Plaintiff testified that she was
involved in the subject accident, on October 5, 2013. Id. at p. 12, In. 4-6. She was riding a
bicycle at the time of the accident. Jd. at p. 13, In. 10-20. The weather at the time of the accident
was clear and the roadway was dry. Id. at p. 18, In. 12-22. Plaintiff testified that she did not
experience any problems with visibility. id. at p. 18, In. 23-25. At the time of the accident,
plaintiff was riding from Borough Hall in downtown Brooklyn, and had intended to ride to
Quincy Street. Jd. at p. 20, In. 21-23, p. 21, In. 16-19 and p. 23, In. 2-6. She had been riding for
15 minutes when the accident occurred. id. at p. 22, In. 24- p. 2, In. 1. The accident occurred at
the intersection of Clinton Avenue and Lafayette Avenue in Brooklyn. Jd. at p. 23, In. 10-14.
Plaintiff was familiar with the location of the accident and traveled through the area at least once
per week. id. at p. 23, In. 15-24. Per Plaintiff's testimony, Lafayette Avenue is a two-lane, one-
way roadway. /d. at p. 24, In. 19-22. The lane for moving traffic on the left side of the roadway
is open for bicycles. Jd. at p. 24, In. 19-23 and p. 25, In. 7-18. The left lane is the width of
approximately one and a half cars. Id. at p. 35, In. 4-19, There are spaces for parking on each
side of the roadway, however there is no bicycle lane. Jd. at p. 24, In. 22- p. 25, In. 4 and 19-24.
At the time of the accident, plaintiff was riding with traffic. Id. at p. 26, In. 17-21. Traffic at the
time of the accident was “moderate to heavy”. Jd. at p. 27, In. 5-6. Plaintiff testified that the
sedan was parked in the shared bicycle lane (“shared lane”). fd. at p. 30, In. 7-11. There was
another vehicle fully parked within a parking spot. Jd. at p. 31, In. 8-10.11. The accident involved plaintiff's bicycle and a maroon sedan (vehicle owned by
Defendant TASBER). Jd. at p. 27, In. 13- p. 28, In. 3. The left side of plaintiff's bicycle was
impacted by the front passenger door of the sedan. /d. at p. 28, In. 7-13 and p. 29, In. 19.
Plaintiff was “about 3 car lengths” behind the maroon sedan when she first observed it. Id. at Pp.
34, In. 14-20. Plaintiff was riding within the shared lane, to the sedan’s left. Id. at p. 34, in. 21-
23 and p. 36, In. 1-4. Plaintiff observed that the two parked cars in question were 5-7 feet away
from each other. Jd. at p. 39, In. 12-15. At this time, Plaintiff was traveling approximately 3-5
miles per hour. /d. at p. 38, In. 18-21. As she attempted to pass the vehicles, plaintiff rode on
the driver’s side of the double-parked car and on the passenger side of the maroon sedan. [d. at p.
40, In. 19-23. She moved closer to the lane of parked cars in order to pass. Id. at p. 85, In. 13-16.
As plaintiff rode in between the vehicles, the passenger door of the maroon sedan to the left of
plaintiff opened its door. /d. at p. 42, In. 3-11. At that time, the passenger door of the maroon
sedan came into contact with the right side of plaintiff. Id. at p. 43, In. 3-8.
12, The Court is respectfully referred to the deposition transcript of EILEEN
TASBER. See transcript dated November 5, 2014, annexed hereto as Exhibit O. TASBER
testified that her vehicle, a 2005 Hyundai Santa Fe, was involved in the subject accident. Jd. at p.
7, In. 21-24 and p. 11, In. 2-5. TASBER was riding with her daughter and DONALD DUNBAR
at the time of the accident. id. at p. 11, In. 6-22. She was at the Brooklyn Fiea Market
immediately prior to the accident. Jd. at p. 9, In. 20-22. Traffic at the time of the accident was
“medium”. Jd. at p. 42, In. 22- p. 43, In. 3. TASBER was the rear, right-side passenger of the
vehicle at the time of impact. Id. at p. 13, In. 3-11. DONALD DUNBAR was the front-seat
passenger. Jd. at p. 13, In. 12-13. TASBER’s daughter was in the driver’s seat. Jd. at p. 13, In.
14-16. The vehicle had not started at the time of the accident. Jd. at p. 13, In. 17-20. No oneattempted to exit the vehicle. /d. at p. 13, In. 21-24. Five minutes elapsed between the time all
three individuals entered the vehicle to the time that DONALD DUNBAR. opened his front
passenger door. /d. at p. 14, In. 4-16. TASBER testified that DUNBAR opened his door because
the driver of another vehiclc, SEAN BRADY, pulled up next to the passenger side of the
TASBER vehicle to ask if the TASBER vehicle was exiting their space. Jd. at p. 15, In. 11-14
and p. 24, In. 22- p. 25, In. 8. DUNBAR opened the door and the plaintiffs bicycle, riding
between the vehicles, hit the edge of the passenger side door. Jd. at p. 15, In. 11-19 and p. 19, In.
17-22. DUNBAR had not exited the vehicle. /d. at p. 17, In. 13-16. When the impact occurred,
the passenger door was open less than halfway. Jd. at p. 17, In. 11-17 and p. 19, In. 8-13.
DUNBAR had opened the door because the car’s automatic windows would not open when the
car was off. Id. at p. 40, In. 10-14. Following the accident, TASBER did not observe any
damage to the door, /d. at p. 20, In. 3-6. TASBER testified that there was less than 3 Y feet
between her vehicle and the other car. Jd. at p. 20, In. 7- p. 21, In. 6. There was a shared lane for
bicycles and automobiles on the roadway. Jd. at p. 42, In. 4-8.
13. The Court is respectfully referred to the deposition transcript of SEAN D.
BRADY. See transcript dated May 15, 2015, annexed hereto as Exhibit P. BRADY was
operating a gray 2013 Volkswagen Passat to the Brooklyn flea market at the time of the accident.
Id. at p. 6, In. 2-13. And p. 7, In. 2-4. The accident occurred on Lafayette. id. at p. 7, In. 21-23,
On the day of the accident, the weather was clear and the roads were dry. Id. at p. 9, In. 2-8.
Lafayette is a one-way sireet with 2 lanes for moving traffic. Id. at p. 10, In. 6-18. There were
parking spaces on each side of the street. Jd. at p. 10, In. 16-24. Iminediately before the
accident occurred, BRADY was looking for a parking space. Jd. at p. 11, In. 3-4. The accident
occurred on the left side of Lafayette. Jd. at p. 11, In. 7-11. BRADY’s vehicle was in the left.hand lane which is a shared lane for both bicycles and vehicles. Jd. at p. 12, In. 4-10. Traffic was
light. Zd. at p. 13, In. 7-15. He brought his vehicle to a stop parallel to the parked TASBER
vehicle. /d. at p. 14, In. 16-19. At the time that he stopped next to the TASBER vehicle, the
TASBER vehicle “looked like they were leaving”. Jd. at p. 14, In. 22-25. BRADY was stopped
4-6 inches to the right of the parking lane. /d. a tp. 15, In. 19-23. When BRADY stopped his
vehicle, he “signaled” to the passenger, DONALD DUNBAR, to see if the TASBER vehicle was
leaving its parking spot. Jd. at p. 16, In. 8-14. BRADY testified that he then rolled down his
window and DONALD DUNBAR opened his door “slightly” to speak to each other. Jd. at p. 16,
In. 17-23. BRADY testified that the TASBER vehicle was “well within” its parking space to-his
left. Id. at p. 17, In. 16-17. BRADY testified that DONALD DUNBAR opened his door “2 to 3
inches”. id. at p. 18, In. 5. BRADY testified that the plaintiff “came from out of nowhere” and
then fell. Jd. at p. 18, In. 7-8. BRADY’s vehicle was not impacted. Jd. at p. 18, In. 8-9. The
BRADY vehicle was stopped for “10 seconds” prior to the accident. Jd. at p. 21, In. 10-13.
BRADY testified that his brake lights and left turn signal was on at the time of impact. Jd. at p.
24.0. 14-17,
14. The Court is respectfully referred to the deposition transcript of DONALD
DUNBAR. See transcript dated May 15, 2015, annexed hereto as Exhibit Q. DUNBAR
testified that he was a front passenger in the TASBER vehicle at the time of the subject accident.
id. at p. 5, in. 23- p. 6, In. 3 and p. 14, In. 11-14. DUNBAR testified that at the time of the
accident, he was leaving the Brooklyn Flea Market. id. at p. 8, In. 3-11. The TASBER vehicle
was parked between 2 cross streets on Lafayette Avenue. Jd. at p. 9, In. 12-17. Lafayette Avenue
is a one way roadway. Id. at p. 9, In. 18-20. There are 2 to 3 lanes for moving traffic on
Lafayette. Avenue. /d. at p. 11, In. 2-5. There were parking spaces on the side of the street. Jd. atp. 11, In. 12-13. The TASBER vehicle was parked on the left side of Lafayette Avenue. Id. at p.
11, In. 14-17. Immediately to the right of the TASBER vehicle, there was a moving traffic lane.
Id. at p. 11, In. 14-21. The moving traffic lane directly to the right of the TASBER vehicle was a
shared bicycle and automobile lane. Jd. at p. 12, In. 2-5. Prior to the accident, DUNBAR had
been sitting in the vehicle for approximately one minute. Jd. at p. 15, In. 3-5. The TASBER
vehicle was not turned on. /d. at p. 15, In. 6-8. DUNBAR testified that a vehicle driven by
BRADY had pulled up to the passenger side of the TASBER vehicle. Zd. at p. 16, In. 4-6.
DUNBAR could not open his window because the TASBER vehicle was not running. Jd. at p.
16, In. 21-25. DUNBAR then opened the passenger side door “2 inches” to tell BRADY that the
TASBER vehicle was leaving the parking space. Jd. at p. 15, In. 24- p. 16, In. 2 and p. 17, In. 2-5.
At the time when he opened the door, the plaintiff made contact with it. Jd. at p. 17, In. 9-12.
DUNBAR testified that he “glanced” over his right shoulder behind him prior to opening his
door. id, at p. 17, In. 21-25 and p. 22, In. 7-10. He did not see a bicycle approaching. /d. at p. 19,
In. 6-8. DUNBAR testified that there were “several feet” between the TASBER vehicle and the
white line separating the parking lane from the shared moving lane. Jd. at p. 21, In. 10-15.
DUNBAR did not see the impact occur. Jd. at p. 22, In. 3-6.
15. Here, it is clear from the testimonies of TASBER, BRADY and DUNBAR that
the TASBER vehicle’s passenger side door was within the parking lane and did not open into the
shared lane for moving traffic at the time of the accident. See Exhibits O, P and Q. Plaintiff
rode her bicycle out of the shared moving traffic lane and within the parking lane, thereby
causing the subject accident. See Exhibit N. ‘Uherefore, TASBER and DUNBAR are not
responsible for the subject incident, and there are no issues of triable fact due to TASBER or
GORDON’ lack of involvement.
1016. _ As such, it is respectfully submitted that TASBER and DUNBAR are entitled to
summary judgment as a matter of law, and that an Order dismissing plaintiff's Complaint against
them should be entered pursuant to CPLR §3212.
17. It is respectfully submitted that based upon the admissible evidence sct forth
herein, as well as the controlling and relevant and applicable case law, TASBER and DUNBAR
have established their prima facie entitlement to summary judgment as a matter of law and as a
result, an Order should be entered pursuant to CPLR §3212 dismissing the plaintiff's Complaint
against them as a matter of law.
18. No prior request for the relief sought herein has been made in this or any other
court of law.
WHEREFORE, for the reasons set forth herein it is respectfully requested that the
motion of TASBER and DUNBAR be granted in all respects and an Order entered accordingly,
along with such other and further relief as the Court deems just and proper.
Dated: Mineola, New York
July 20, 2015
MEGAN C. SAMPSON
1
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(FILED: KINGS COUNTY CLERK 0871972015 I1:39 AM INDEX NO. 508333/2013 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/19/2015 MCS/mb 508333/13E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS a xX EMILY PRICE, Plaintiff, -against- EILEEN TASBER, DONALD DUNBAR and SEAN D. Index No. 508333/2013E BRADY, NOTICE OF MOTION Defendants FOR SUMMARY JUDGMENT ee ee enn! xX EILEEN TASBER, Justice Assigned: Hon. Nancy T. Sunshine ‘Third-Party Plaintiff, -against- SEAN D. BRADY, Third-Party Defendant. meee nn nn nnn nnn nnnnnnmnnnnnnnnnne xX MOTION MADE BY: MARTYN, TOHER, MARTYN and ROSSI Attomeys for Defendants EILEEN TASBER and DONALD DUNBAR 330 Old Country Road, Suite 211 Mineola, New York 11501 RETURN DATE AND TIME: September 22, 2015 at 9:30 A.M. or as soon thereafter as counsel can be heard PLACE: SUPREME COURT, COUNTY OF KINGS, to be held at the Courthouse located at Submission Part Room 227, 360 Adams Street, Brooklyn, NY 11201 SUPPORTING PAPERS: Affirmation of Megan C. Sampson and ExhibitsRELIEF REQUESTED: ANSWERING PAPERS: Dated: Mineola, New York July 20, 2015 TO: FLANZIG AND FLANZIG, LLP Attorneys for Plaintiff 323 Willis Avenue P.O. Box 669 Mineola, NY 11501-0669 (516) 741-8222 annexed thereto a) b) For an Order summary judgment in favor of defendants, EILEEN TASBER and DONALD DUNBAR, pursuant to CPLR §3212 dismissing the Complaint against defendants, as they bear no liability for the subject accident as a matter of law; and Any further relief which this Court deems just and proper. All answering papers if any are to be served seven (7) days prior to the return date or adjourned date of this motion, pursuant to C.P.L.R. §2214(b) Yours & etc., 2? By: C. Sampson , TOHER, MARTYN and ROSSI s for Defendants EILEEN TASBER and DONALD DUNBAR 330 Old Country Road, Suite 211 Mineola, New York 11501 (516) 739-0000 AHMUTY, DEMERS & MCMANUS, ESQS. Attomeys for Defendant SEAN D. BRADY 200 LU. Willets Road Albertson, NY 11507 (516) 294-5433SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS EMILY PRICE, Plaintiff, -against- EILEEN TASBER, DONALD DUNBAR and SEAN D. BRADY, Defendants Index No. 508333/2013E EILEEN TASBER, eee x AFF i IN Third-Party Plaintiff, -against- SEAN D. BRADY, Third-Party Defendant. oe x MEGAN C. SAMPSON, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true, upon information and belief, under penalties of perjury: 1. I am associated with the law firm of MARTYN, TOHER, MARTYN and ROSSI, attorneys for the defendants, EILEEN TASBER (“TASBER”) and DONALD DUNBAR (“DUNBAR”). I am fully familiar with the facts and circumstances set forth herein based upon my review of a file maintained in this office. 2. This affirmation is submitted in support of the within motion for an Order pursuant to CPLR §3212 granting the defendants, TASBER and DUNBAR, summary judgment and dismissing the Complaint against them as they bear no liability for the subject accident as a matter of law.NATURE OF CASE 3. This action involves an alleged motor vehicle accident, which occurred on or about October 5, 2013 on Lafayette Avenue at or near its intersection with Clinton Avenue, in the County of Kings, City and State of New York, wherein the plaintiff allegedly sustained personal injuries. PROCEDURAL HISTORY 4. Plaintiff EMILY PRICE (“Plaintiff”) commenced this action by service of a Summons and Complaint dated December 26, 2013. See Summons and Complaint, annexed as Exhibit A. Defendant EILEEN TASBER (“TASBER”) interposed a Verified Answer on or about March 24, 2014. See Verified Answer, annexed as Exhibit B. Plaintiff then served a Verified Bill of Particulars dated April 3, 2014, annexed hereto as Exhibit C. On or about May 20, 2014, TASBER filed a Third Party Complaint, bringing in SEAN D. BRADY as a Third Party Defendant. See Third Party Summons and Complaint, annexed hereto as Exhibit D. A Supplemental Summons and Complaint was then filed, adding SEAN D. BRADY as Defendant. See Supplemental Summons and Complaint, annexed hereto as Exhibit E. TASBER then filed a Verified Answer to Supplemental Verified Complaint dated July 9, 2014 and annexed hereto as Exhibit F. SEAN D. BRADY interposed a Verified Answer dated August 6, 2014. See Verified Answer with Cross-Claims, annexed hercto as Exhibit G. A Supplemental Bill of Particulars was served by Plaintiff dated August 18, 2014. See Supplemental Bill of Particulars, annexed hereto as Exhibit H. 5. The parties signed a Stipulation dated November 6, 2014, aliowing plaintiff leave to supplement plaintiff's Supplemental Summons and Complaint, to add Defendant, DONALD DUNBAR. See Stipulation, annexed hereto as Exhibit I.6. A Second Supplemental Summons and Complaint, dated November 6, 2014, was filed, annexed hereto as Exhibit J. Additionally, plaintiff filed a Supplemental Bill of Particulars dated November 6, 2014. See Supplemental Bill of Particulars, annexed hereto as Exhibit K. TASBER filed a Verified Answer to Second Supplemental Complaint dated November 13, 2014 and a Verified Amended Answer to Second Supplemental Complaint. See Verified Answer to Second Supplemental Complaint and Verified Amended Answer to Second Supplemental Complaint, annexed hereto, collectively, as Exhibit L. TASBER and DONALD DUNBAR filed an Amended Answer to Second Supplemental Verified Complaint dated February 20, 2015. See Amended Answer to Second Supplemental Verified Complaint, annexed hereto as Exhibit M. 7. Plaintiff filed a Note of Issue on June 29, 2015. Theretore, this motion for Summary Judgment is timely. ARGUMENT POINT I DEFENDANTS TASBER AND DUNBAR ARE ENTITLED TO SUMMARY JUDGMENT AS THEY BEAR NO LIABILITY FOR THE SUBJECT ACCIDENT DUE TO NON-INVOLVEMENT 8. Summary judgment is proper when there are no issues of triable fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572 (1986). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Jd 9. Further, it is well settled that where plaintiff cannot establish that defendant owed plaintiff a duty and violated said duty such that it was a proximate cause of injuries to plaintiff, plaintiff cannot establish a prima facie case of negligence against defendant, and defendant isentitled to summary judgment as a matter of law. See Pulka v. Edelman, 40 N.Y.2d 781, 358 N.E.2d 1019 (1976); Engelhart v. County of Orange, 16 A.D.3d 369, 790 N.Y.S.2d 704 (2d Dep’t. 2005); Gordon v. Muchnick, 180 A.D.2d 715, $79 N.Y.S.2d 745 (2d. Dep’t. 1992). 10. ‘The Court is respectfully referred to the deposition transcript of Plaintiff. See transcript dated November 5, 2014, annexed hereto as Exhibit N. Plaintiff testified that she was involved in the subject accident, on October 5, 2013. Id. at p. 12, In. 4-6. She was riding a bicycle at the time of the accident. Jd. at p. 13, In. 10-20. The weather at the time of the accident was clear and the roadway was dry. Id. at p. 18, In. 12-22. Plaintiff testified that she did not experience any problems with visibility. id. at p. 18, In. 23-25. At the time of the accident, plaintiff was riding from Borough Hall in downtown Brooklyn, and had intended to ride to Quincy Street. Jd. at p. 20, In. 21-23, p. 21, In. 16-19 and p. 23, In. 2-6. She had been riding for 15 minutes when the accident occurred. id. at p. 22, In. 24- p. 2, In. 1. The accident occurred at the intersection of Clinton Avenue and Lafayette Avenue in Brooklyn. Jd. at p. 23, In. 10-14. Plaintiff was familiar with the location of the accident and traveled through the area at least once per week. id. at p. 23, In. 15-24. Per Plaintiff's testimony, Lafayette Avenue is a two-lane, one- way roadway. /d. at p. 24, In. 19-22. The lane for moving traffic on the left side of the roadway is open for bicycles. Jd. at p. 24, In. 19-23 and p. 25, In. 7-18. The left lane is the width of approximately one and a half cars. Id. at p. 35, In. 4-19, There are spaces for parking on each side of the roadway, however there is no bicycle lane. Jd. at p. 24, In. 22- p. 25, In. 4 and 19-24. At the time of the accident, plaintiff was riding with traffic. Id. at p. 26, In. 17-21. Traffic at the time of the accident was “moderate to heavy”. Jd. at p. 27, In. 5-6. Plaintiff testified that the sedan was parked in the shared bicycle lane (“shared lane”). fd. at p. 30, In. 7-11. There was another vehicle fully parked within a parking spot. Jd. at p. 31, In. 8-10.11. The accident involved plaintiff's bicycle and a maroon sedan (vehicle owned by Defendant TASBER). Jd. at p. 27, In. 13- p. 28, In. 3. The left side of plaintiff's bicycle was impacted by the front passenger door of the sedan. /d. at p. 28, In. 7-13 and p. 29, In. 19. Plaintiff was “about 3 car lengths” behind the maroon sedan when she first observed it. Id. at Pp. 34, In. 14-20. Plaintiff was riding within the shared lane, to the sedan’s left. Id. at p. 34, in. 21- 23 and p. 36, In. 1-4. Plaintiff observed that the two parked cars in question were 5-7 feet away from each other. Jd. at p. 39, In. 12-15. At this time, Plaintiff was traveling approximately 3-5 miles per hour. /d. at p. 38, In. 18-21. As she attempted to pass the vehicles, plaintiff rode on the driver’s side of the double-parked car and on the passenger side of the maroon sedan. [d. at p. 40, In. 19-23. She moved closer to the lane of parked cars in order to pass. Id. at p. 85, In. 13-16. As plaintiff rode in between the vehicles, the passenger door of the maroon sedan to the left of plaintiff opened its door. /d. at p. 42, In. 3-11. At that time, the passenger door of the maroon sedan came into contact with the right side of plaintiff. Id. at p. 43, In. 3-8. 12, The Court is respectfully referred to the deposition transcript of EILEEN TASBER. See transcript dated November 5, 2014, annexed hereto as Exhibit O. TASBER testified that her vehicle, a 2005 Hyundai Santa Fe, was involved in the subject accident. Jd. at p. 7, In. 21-24 and p. 11, In. 2-5. TASBER was riding with her daughter and DONALD DUNBAR at the time of the accident. id. at p. 11, In. 6-22. She was at the Brooklyn Fiea Market immediately prior to the accident. Jd. at p. 9, In. 20-22. Traffic at the time of the accident was “medium”. Jd. at p. 42, In. 22- p. 43, In. 3. TASBER was the rear, right-side passenger of the vehicle at the time of impact. Id. at p. 13, In. 3-11. DONALD DUNBAR was the front-seat passenger. Jd. at p. 13, In. 12-13. TASBER’s daughter was in the driver’s seat. Jd. at p. 13, In. 14-16. The vehicle had not started at the time of the accident. Jd. at p. 13, In. 17-20. No oneattempted to exit the vehicle. /d. at p. 13, In. 21-24. Five minutes elapsed between the time all three individuals entered the vehicle to the time that DONALD DUNBAR. opened his front passenger door. /d. at p. 14, In. 4-16. TASBER testified that DUNBAR opened his door because the driver of another vehiclc, SEAN BRADY, pulled up next to the passenger side of the TASBER vehicle to ask if the TASBER vehicle was exiting their space. Jd. at p. 15, In. 11-14 and p. 24, In. 22- p. 25, In. 8. DUNBAR opened the door and the plaintiffs bicycle, riding between the vehicles, hit the edge of the passenger side door. Jd. at p. 15, In. 11-19 and p. 19, In. 17-22. DUNBAR had not exited the vehicle. /d. at p. 17, In. 13-16. When the impact occurred, the passenger door was open less than halfway. Jd. at p. 17, In. 11-17 and p. 19, In. 8-13. DUNBAR had opened the door because the car’s automatic windows would not open when the car was off. Id. at p. 40, In. 10-14. Following the accident, TASBER did not observe any damage to the door, /d. at p. 20, In. 3-6. TASBER testified that there was less than 3 Y feet between her vehicle and the other car. Jd. at p. 20, In. 7- p. 21, In. 6. There was a shared lane for bicycles and automobiles on the roadway. Jd. at p. 42, In. 4-8. 13. The Court is respectfully referred to the deposition transcript of SEAN D. BRADY. See transcript dated May 15, 2015, annexed hereto as Exhibit P. BRADY was operating a gray 2013 Volkswagen Passat to the Brooklyn flea market at the time of the accident. Id. at p. 6, In. 2-13. And p. 7, In. 2-4. The accident occurred on Lafayette. id. at p. 7, In. 21-23, On the day of the accident, the weather was clear and the roads were dry. Id. at p. 9, In. 2-8. Lafayette is a one-way sireet with 2 lanes for moving traffic. Id. at p. 10, In. 6-18. There were parking spaces on each side of the street. Jd. at p. 10, In. 16-24. Iminediately before the accident occurred, BRADY was looking for a parking space. Jd. at p. 11, In. 3-4. The accident occurred on the left side of Lafayette. Jd. at p. 11, In. 7-11. BRADY’s vehicle was in the left.hand lane which is a shared lane for both bicycles and vehicles. Jd. at p. 12, In. 4-10. Traffic was light. Zd. at p. 13, In. 7-15. He brought his vehicle to a stop parallel to the parked TASBER vehicle. /d. at p. 14, In. 16-19. At the time that he stopped next to the TASBER vehicle, the TASBER vehicle “looked like they were leaving”. Jd. at p. 14, In. 22-25. BRADY was stopped 4-6 inches to the right of the parking lane. /d. a tp. 15, In. 19-23. When BRADY stopped his vehicle, he “signaled” to the passenger, DONALD DUNBAR, to see if the TASBER vehicle was leaving its parking spot. Jd. at p. 16, In. 8-14. BRADY testified that he then rolled down his window and DONALD DUNBAR opened his door “slightly” to speak to each other. Jd. at p. 16, In. 17-23. BRADY testified that the TASBER vehicle was “well within” its parking space to-his left. Id. at p. 17, In. 16-17. BRADY testified that DONALD DUNBAR opened his door “2 to 3 inches”. id. at p. 18, In. 5. BRADY testified that the plaintiff “came from out of nowhere” and then fell. Jd. at p. 18, In. 7-8. BRADY’s vehicle was not impacted. Jd. at p. 18, In. 8-9. The BRADY vehicle was stopped for “10 seconds” prior to the accident. Jd. at p. 21, In. 10-13. BRADY testified that his brake lights and left turn signal was on at the time of impact. Jd. at p. 24.0. 14-17, 14. The Court is respectfully referred to the deposition transcript of DONALD DUNBAR. See transcript dated May 15, 2015, annexed hereto as Exhibit Q. DUNBAR testified that he was a front passenger in the TASBER vehicle at the time of the subject accident. id. at p. 5, in. 23- p. 6, In. 3 and p. 14, In. 11-14. DUNBAR testified that at the time of the accident, he was leaving the Brooklyn Flea Market. id. at p. 8, In. 3-11. The TASBER vehicle was parked between 2 cross streets on Lafayette Avenue. Jd. at p. 9, In. 12-17. Lafayette Avenue is a one way roadway. Id. at p. 9, In. 18-20. There are 2 to 3 lanes for moving traffic on Lafayette. Avenue. /d. at p. 11, In. 2-5. There were parking spaces on the side of the street. Jd. atp. 11, In. 12-13. The TASBER vehicle was parked on the left side of Lafayette Avenue. Id. at p. 11, In. 14-17. Immediately to the right of the TASBER vehicle, there was a moving traffic lane. Id. at p. 11, In. 14-21. The moving traffic lane directly to the right of the TASBER vehicle was a shared bicycle and automobile lane. Jd. at p. 12, In. 2-5. Prior to the accident, DUNBAR had been sitting in the vehicle for approximately one minute. Jd. at p. 15, In. 3-5. The TASBER vehicle was not turned on. /d. at p. 15, In. 6-8. DUNBAR testified that a vehicle driven by BRADY had pulled up to the passenger side of the TASBER vehicle. Zd. at p. 16, In. 4-6. DUNBAR could not open his window because the TASBER vehicle was not running. Jd. at p. 16, In. 21-25. DUNBAR then opened the passenger side door “2 inches” to tell BRADY that the TASBER vehicle was leaving the parking space. Jd. at p. 15, In. 24- p. 16, In. 2 and p. 17, In. 2-5. At the time when he opened the door, the plaintiff made contact with it. Jd. at p. 17, In. 9-12. DUNBAR testified that he “glanced” over his right shoulder behind him prior to opening his door. id, at p. 17, In. 21-25 and p. 22, In. 7-10. He did not see a bicycle approaching. /d. at p. 19, In. 6-8. DUNBAR testified that there were “several feet” between the TASBER vehicle and the white line separating the parking lane from the shared moving lane. Jd. at p. 21, In. 10-15. DUNBAR did not see the impact occur. Jd. at p. 22, In. 3-6. 15. Here, it is clear from the testimonies of TASBER, BRADY and DUNBAR that the TASBER vehicle’s passenger side door was within the parking lane and did not open into the shared lane for moving traffic at the time of the accident. See Exhibits O, P and Q. Plaintiff rode her bicycle out of the shared moving traffic lane and within the parking lane, thereby causing the subject accident. See Exhibit N. ‘Uherefore, TASBER and DUNBAR are not responsible for the subject incident, and there are no issues of triable fact due to TASBER or GORDON’ lack of involvement. 1016. _ As such, it is respectfully submitted that TASBER and DUNBAR are entitled to summary judgment as a matter of law, and that an Order dismissing plaintiff's Complaint against them should be entered pursuant to CPLR §3212. 17. It is respectfully submitted that based upon the admissible evidence sct forth herein, as well as the controlling and relevant and applicable case law, TASBER and DUNBAR have established their prima facie entitlement to summary judgment as a matter of law and as a result, an Order should be entered pursuant to CPLR §3212 dismissing the plaintiff's Complaint against them as a matter of law. 18. No prior request for the relief sought herein has been made in this or any other court of law. WHEREFORE, for the reasons set forth herein it is respectfully requested that the motion of TASBER and DUNBAR be granted in all respects and an Order entered accordingly, along with such other and further relief as the Court deems just and proper. Dated: Mineola, New York July 20, 2015 MEGAN C. SAMPSON 1