New York judges continue to disagree on what constitutes a triable issue of fact, even where a bicyclist-pedestrian was caught on video surveillance. In a single-paragraph decision issued on February 9, 2023, the New York Court of Appeals affirmed the First Department’s grant of summary judgment to the defendant bicyclist in Zhong v. Matranga, which reversed the trial court’s denial of that motion. Of the 12 judges to consider the motion (albeit at different stages), eight found that plaintiff pedestrian failed to raise an issue of fact, while four held that she had. All watched the same video.
The First Department’s 3-2 decision – after a lively oral argument in which a divided panel peppered attorneys with questions – thoroughly examined the many dinner-table questions presented by a split-second collision on 91st Street and First Avenue on a busy Friday evening of Memorial Day weekend in 2016.
The majority held that defendant was riding his bicycle through the intersection with the green light in his favor, while plaintiff suddenly walked off the curb and into the bicycle lane against the red light for pedestrians without looking both ways and less than ten feet from the incoming bicyclist. It was undisputed that the bicyclist was riding at approximately 14mph, well below the 25mph speed limit. For those reasons, the First Department held that defendant was not negligent, and plaintiff was the sole proximate cause of the accident. The Court further held that the plaintiff’s expert’s testimony was insufficient to raise an issue of fact as it expressed in a conclusory manner that defendant was riding at an excessive speed when compared to the speed of the three other bicyclists in the video and could have slowed down, stopped, or maneuvered around plaintiff to avoid the collision. The majority pointed to the defense expert who opined that defendant could not have evaded plaintiff to the left or right without putting himself or other pedestrians at risk.
The two-Justice dissent, endorsed by Judge Rivera of the Court of Appeals, stated that, although neither party disputed that the bicyclist had the right of way, plaintiff raised a triable issue of fact through her deposition testimony that she had looked both ways and did not see defendant coming before stepping off the curb, which a jury might find indicative of excessive speed. Despite both experts testifying that defendant was riding at approximately 14mph, the dissent pointed to the video showing that defendant was at least keeping pace with a bus driving in the same direction. Moreover, a jury might find defendant’s riding faster than other bicyclists in the video surveillance probative of what constituted a safe speed under the circumstances. Ultimately, the dissent suggested that the majority was sifting and weighing relevant facts, which should be within the province of the jury.
Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions.