Hyejun Cho v. New York City Tr. Auth.

Hyejun Cho v New York City Tr. Auth. 2026 NY Slip Op 05774 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Hyejun Cho, appellant, v New York City Transit Authority, et al., respondents, et al., defendant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2024-10511, (Index No. 510627/24) Mark C. Dillon, J.P. Valerie Brathwaite Nelson Laurence L. Love James P. McCormack, JJ. Sutton & Smyth, LLP, New York, NY (Leigh H. Sutton of counsel), for appellant. Anna J. Ervolina, Brooklyn, NY (Gregory Cascino and Jeremy Pepper of counsel), for respondents. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated July 24, 2024. The order, in effect, converted the motion of the defendants New York City Transit Authority and Jose Castro pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them into one for summary judgment dismissing the complaint insofar as asserted against them, and thereupon granted the motion. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries she alleged she sustained when a vehicle operated by the defendant Ou Wu, in which the plaintiff was a passenger, was struck by a bus operated by the defendant Jose Castro and owned by the defendant New York City Transit Authority (hereinafter together the NYCTA defendants). The NYCTA defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. The plaintiff opposed the motion. In an order dated July 24, 2024, the Supreme Court, in effect, converted the NYCTA defendants' motion into one for summary judgment dismissing the complaint insofar as asserted against them, and thereupon granted the motion. The plaintiff appeals. The Supreme Court properly, in effect, "converted the motion to dismiss the complaint to one for summary judgment because the parties made 'it unequivocally clear that they [were] laying bare their proof and deliberately charting a summary judgment course'" (Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546, 546, quoting Jamison v Jamison, 18 AD3d 710, 711; see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320). "A '[d]efendant[ ] moving for summary judgment in a negligence action arising out of an automobile accident ha[s] the burden of establishing, prima facie, that [he or she was] not at fault in the happening of the accident, or that the alleged negligence of another person was the sole proximate cause [thereof]'" (Morante v Blaney, 234 AD3d 679, 680, quoting Woods v Burgos, 220 AD3d 688, 689). A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (see id.; Beityaaghoob v Klein, 216 AD3d 724, 725). Vehicle and Traffic Law § 1163(a) provides, in pertinent part, that "[n]o person shall turn a vehicle . . . to enter [*2]a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety." Although a driver with the right-of-way is entitled to anticipate that the other driver will obey the traffic laws requiring him or her to yield, a driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so (see Defio v Nitsky, 243 AD3d 540, 541; Hurst v Belomme, 142 AD3d 642, 642-643). "However, 'a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision'" (Morante v Blaney, 234 AD3d at 680, quoting Giwa v Bloom, 154 AD3d 921, 922; see Higgins v Stelmach, 208 AD3d 1165, 1167). Here, the NYCTA defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by submitting, inter alia, a bus surveillance video recording that demonstrated, prima facie, that the NYCTA defendants had the right-of-way, that Wu violated Vehicle and Traffic Law § 1163 when he failed to yield and made a left turn into the path of the bus, and that Castro did not have sufficient time to react in order to avoid the collision (see Morante v Blaney, 234 AD3d at 680; Smith v Trail, 221 AD3d 928, 930). In opposition, the plaintiff submitted, among other things, a sworn affirmation of Wu, in which he stated that, before turning left, he turned on his left blinker and looked to see if there were any vehicles traveling westbound. Observing that it was safe to turn, Wu initiated the turn. Approximately half-way through the turn, the bus quickly, suddenly, and without warning pulled away from a bus stop and collided with the rear, passenger side of Wu's vehicle. This conflicting evidence, without more, would have presented a triable issue of fact as to how the accident occurred, but for the NYCTA defendants' submission of the bus surveillance video recording, which conclusively established that Wu was the sole proximate cause of the accident (see Pappas v New York City Tr. Auth., 208 AD3d 890, 891-892). Accordingly, the plaintiff failed to raise a triable issue of fact, and the Supreme Court properly, upon, in effect, converting the NYCTA defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them into one for summary judgment dismissing the complaint insofar as asserted against them, granted the motion. The plaintiff's remaining contentions either are improperly raised for the first time on appeal, are without merit, or need not be reached in light of our determination. DILLON, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court