New York Vehicle and Traffic Law ("VTL") § 1111, the applicable statute when discussing the duty imposed on operators of motor vehicles when approaching pedestrian traffic within a crosswalk, in relevant part, sets forth as follows:
Whenever traffic is controlled by traffic-control signals, other than lane direction control signal indications provided in section eleven hundred sixteen, exhibiting different colored lights, or colored lighted arrows, successively, one at a time or in combination, only the colors green, yellow and red shall be used, and said light shall indicate and apply to drivers or vehicles and to pedestrians as follows:(a) Green indications:
1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.
A cross reference is included above to New York Vehicle and Traffic Law § 1112(a), which indicates:
Whenever pedestrians are controlled by pedestrian-control signals exhibiting the words "WALK" or "DON'T WALK", or exhibiting symbols of a walking person or upraised hand, such signals shall indicate and apply to pedestrians as follows:
(a) Steady WALK or walking person. Pedestrians facing such signal may proceed across the roadway in the direction of the signal and shall be given the right of way by other traffic (emphasis added).
VTL § 1146 imposes a superseding duty on a motorist to exercise due care to avoid hitting a pedestrian. Particularly, VTL § 1146 imposes a duty on motorists to warn pedestrians by sounding the horn when necessary. The section provides as follows: "... every driver of a vehicle shall exercise due care to avoid colliding with any ... pedestrian... upon any roadway and shall give warning by sounding the horn when necessary... " Significantly, Defendants' failure to comply with New York Vehicle and Traffic Law § 1146 constitutes negligence. See, Johnson v. Lovett, 285 A.D.2d 627, 728 N.Y.S.2d 753 (2nd Dept., 2001) and Gonzalez v. Medina, 69 A.D.2d 14, 417 N.Y.S.2d 953 (1st Dept., 1979)
See, also, New York Pattern Jury Instruction, Section 2:75 (A motorist is under a duty to use that degree of care that a reasonably prudent person would have used under the same circumstances. A motorist is required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound a horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway.)
New York Vehicle and Traffic Law § 1163 provides "no person shall turn a vehicle at an intersection... unless and until such movement can be made with reasonable safety."
In Martinez v. Kreychmar, 84 A.D.3d 1037, 923 N.Y.S.2d 648 (2nd Dept., 2011), the Second Department reversed the lower court's denial of summary judgment in favor of the plaintiff pedestrian. The plaintiff in Martinez, supra, moved the lower court prior to the completion of depositions in the case. The Martinez Court wrote:
"In support of her motion for summary judgment on the issue of liability, the plaintiff pedestrian demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendant's car failed to yield the right-of-way and struck her at a high rate of speed. The plaintiff further demonstrated that, exercising due care, she had looked in all directions to check for approaching vehicles before she entered the intersection. Contrary to the Supreme Court's conclusion, this proof was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability, including her freedom from comparative fault. As the defendant failed to offer any evidence in opposition, the plaintiff was entitled to summary judgment on the issue of liability.
Moreover, the motion for summary judgment was not premature, since the defendant failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition were exclusively within the knowledge and control of the plaintiff. The defendant's mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered by further discovery is an insufficient basis for denying the motion."
Numerous decisions are in accord and support the award of summary judgment against defendant driver where plaintiff, a lawful pedestrian, looked both ways for approaching vehicles near the intersection before stepping off the sidewalk, and further, was crossing the roadway with the pedestrian light in his or her favor within the marked crosswalk. Consider: Moreira v. M.K. Travel & Transp., Inc., 106 A.D.3d 965, 966 N.Y.S.2d 150 (2nd Dept., 2013) ("The plaintiff pedestrian was crossing an intersection in Queens within the crosswalk and with the pedestrian crossing signal in her favor when she was struck by a vehicle owned by defendants... as it turned left into the intersection, causing her to sustain a broken leg... .The plaintiff moved for summary judgment on the issue of liability, offering proof that she waited for the pedestrian crossing signal to display the walk icon, looked both ways before she entered the intersection, and proceeded to cross the street at a normal pace, walking within the crosswalk, when a few steps before reaching the opposite sidewalk, she was struck by the defendants' vehicle as it turned left into the intersection... The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right-of-way."); Castro v. New York City Transit Authority, 95 A.D.3d 1056, 943 N.Y.S.2d 901, (2nd Dept., 2012) ("The plaintiff pedestrian was crossing the street within the crosswalk with the traffic light and pedestrian crossing signal in her favor when she was struck on her left side by a bus... as it was making a right turn. The NYCTA acknowledges that the plaintiff was walking within the crosswalk and had the traffic and pedestrian signals in her favor at the time of the accident. The evidence submitted by the plaintiff established that, as a matter of law, the defendant driver violated the Traffic Rules and Regulations of the City of New York (34 RCNY) §4-03(a)(1)(i) and that plaintiff was free from comparative fault. In opposition, the NYCTA failed to raise a triable issue of fact.") and Ricci v. Lo, 95 A.D.3d 859, 942 N.Y.S.2d 644, (2nd Dept., 2012) ("The plaintiff who was struck by a vehicle driven by the defendant... in the cross walk a she was crossing Flatbush Avenue in Brooklyn with the light in her favor, established prima facie that the defendants were liability for her injuries and that she was free from comparative fault.").