SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1192
CA 14-00541
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.
NATHAN MCLEOD, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
MARK J. TACCONE, DEFENDANT-RESPONDENT.
CELLINO & BARNES, P.C., ROCHESTER (SAREER A. FAZILI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
HAGELIN KENT LLC, BUFFALO (BENJAMIN R. WOLF OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered May 25, 2013. The order, insofar as appealed
from, granted in part the motion of defendant for partial summary
judgment and denied the cross motion of plaintiff to preclude
testimony by a nonparty witness.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when his bicycle collided with a motor vehicle
driven by defendant. The accident occurred while plaintiff was
attempting to cross a four-lane road from a side street controlled by
a stop sign.
Supreme Court properly granted defendant’s motion for partial
summary judgment on the issue of plaintiff’s negligence. It is well
established that, with certain exceptions not relevant here, “a person
riding a bicycle on a roadway is entitled to all of the rights and
bears all of the responsibilities of a driver of a motor vehicle”
(Palma v Sherman, 55 AD3d 891, 891; see Vehicle and Traffic Law §
1231), and that “an unexcused violation of the Vehicle and Traffic Law
. . . constitutes negligence per se” (Long v Niagara Frontier Transp.
Auth., 81 AD3d 1391, 1392; see Koziol v Wright, 26 AD3d 793, 794;
Holleman v Miner, 267 AD2d 867, 868-869). We conclude that defendant
met his initial burden of establishing that plaintiff was negligent as
a matter of law, and that plaintiff failed to raise a triable issue of
fact (see Trzepacz v Jara, 11 AD3d 531, 531; see generally Zuckerman v
City of New York, 49 NY2d 557, 562). Defendant established that
plaintiff violated Vehicle and Traffic Law § 1142 (a) by “proceed[ing]
into an intersection controlled by a stop sign and fail[ing] to yield
the right of way to [defendant’s] approaching vehicle” (Trzepacz, 11
-2- 1192
CA 14-00541
AD3d at 531; see Hyatt v Messana, 67 AD3d 1400, 1401). Moreover, the
accident occurred at night while plaintiff was wearing dark clothing,
and he was operating his bicycle without lights or sufficient
reflectors in violation of Vehicle and Traffic Law § 1236 (see Green v
Mower, 302 AD2d 1005, 1005, affd 100 NY2d 529; Weise v Lazore, 99 AD2d
919, 920, lv denied 62 NY2d 606; Ortiz v Kinoshita & Co., 30 AD2d 334,
335).
We further conclude that the court did not abuse its discretion
in denying plaintiff’s cross motion to preclude testimony by a
nonparty witness (see Charter Sch. for Applied Tech. v Board of Educ.
for City Sch. Dist. of City of Buffalo, 105 AD3d 1460, 1464;
Andruszewski v Cantello, 247 AD2d 876, 876-877). “The penalty of
preclusion is extreme and should be imposed only when the failure to
comply with a disclosure [demand] is the result of willful,
deliberate, and contumacious conduct” (Gendusa v Yu Lin Chen, 71 AD3d
1085, 1086; see Maillard v Maillard, 243 AD2d 448, 449; Malcolm v
Darling, 233 AD2d 425, 426), or when the moving party is prejudiced by
the late disclosure (see Finnegan v Peter, Sr. & Mary L. Liberatore
Family Ltd. Partnership, 90 AD3d 1676, 1677; Koziarz v New York City
Tr. Auth., 40 AD3d 412, 413; Tronolone v Praxair, Inc., 39 AD3d 1146,
1147). Here, plaintiff failed to establish in support of his cross
motion either a willful failure to disclose the existence of the
nonparty witness or prejudice (see Finnegan, 90 AD3d at 1677; see also
Wall v Shepard, 53 AD3d 1050, 1051). The delay in disclosing the
witness was the result of an oversight rather than bad faith on the
part of defendant, and plaintiff was afforded the opportunity to
depose the witness (see Finnegan, 90 AD3d at 1677; Gendusa, 71 AD3d at
1086).
Entered: November 21, 2014 Frances E. Cafarell
Clerk of the Court