Rubin v. United States

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APPEARING FOR APPELLEE: DAVID COOPER (Varuni Nelson, Rachel G. 2 Balaban, on the brief), Assistant United States 3 Attorneys, for Joseph Nocella, United States 4 Attorney for the Eastern District of New York, 5 Brooklyn, NY. 6

Appeal from a judgment of the United States District Court for the Eastern District 7 of New York (DeArcy Hall, J.). 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the judgment of the district court is VACATED and the case is 10

REMANDED. 11

Plaintiff-Appellant Louis Rubin appeals from a September 30, 2024 judgment of 12 the District Court for the Eastern District of New York (DeArcy Hall, J.) granting 13 summary judgment for Defendant-Appellee the United States, and dismissing Rubin's 14 negligence claims. Rubin sued under the Federal Tort Claims Act ("FTCA") for injuries 15 resulting from a collision between his electric scooter and a car owned by the United 16 States and driven by its employee, John Valdes. 28 U.S.C. §§ 1346, 2671 et seq. The 17 collision occurred at the intersection of Avenue K and East 36th Street in Brooklyn, New 18 York. We assume the parties' familiarity with the underlying facts, procedural history, 19 and arguments on appeal, to which we refer only as necessary to explain our decision. 20 Rubin claims that the district court erred in granting summary judgment, arguing 21 that: (1) traveling east on Avenue K, he had the right-of-way; (2) Valdes, traveling west 22

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on Avenue K, was negligent as a matter of law in turning left in front of the eastbound 1 traffic on Avenue K, which included Rubin on his scooter; (3) even if Valdes was not 2 negligent as a matter of law, Valdes had a duty of reasonable care to watch for scooters 3 before turning left, and he violated that duty; (4) Valdes's breach of duty was the sole 4 proximate cause of the accident; and (5) at least, Valdes was comparatively negligent. 5

* * * 6 The core facts, which are captured in a video of the traffic accident, may be 7 summarized as follows. In the relevant portion of Avenue K, there is a single lane of 8 traffic in each direction. When Valdes, driving in the westbound lane of Avenue K, 9 reached the East 36th Street intersection, which had no traffic lights or stop signs, he 10 paused before starting his left turn. The eastbound vehicle traffic on Avenue K had 11 stopped. As Valdes was making his turn, Rubin was scootering east on Avenue K. Rubin 12 was traveling in the narrow space between the vehicle traffic and parked cars, below the 13 speed limit for electric scooters but faster than the rest of the eastbound traffic. As Rubin 14 traveled along Avenue K and approached the East 36th Street intersection, he passed 15 between three stopped vehicles to his left in the traffic lane and several vehicles parked 16 to the right. Rubin's and Valdes's views of each other were obstructed by one of the three 17 stopped vehicles in the eastbound traffic lane: a large white van that was stopped just 18 before the intersection, behind a white SUV. The white SUV cleared the intersection, but 19

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the white van waited, apparently either for the upcoming traffic light a block ahead to 1 change or to allow Valdes to turn. 2

At the intersection, Valdes, still in the westbound traffic lane, stopped for three to 3 four seconds before turning. As Valdes's vehicle entered the intersection and turned 4 across the eastbound traffic lane, in front of the white van, Rubin was approximately two 5 car-lengths away from the intersection. Seeing the white SUV in front of the white van 6 pass through the intersection ahead of him, and unable to see Valdes turning in front of 7 the stopped white van, Rubin continued at speed, scootering towards and into the 8 intersection to the right of the white van. 9

Just before the collision, Valdes's vehicle was fully perpendicular to Avenue K, 10 heading south onto the cross-street, but still in the intersection. Before Valdes's car 11 cleared the intersection, Rubin's scooter struck the back of Valdes's car next to the car's 12 right rear wheel. After the impact, Rubin fell forward from his scooter onto the pavement 13 in the intersection, beyond the rear of Valdes's car. 14

On January 24, 2022, after exhausting his administrative remedies, Rubin filed this 15 action. Then, following discovery, the United States moved for summary judgment. The 16 district court granted the motion, finding "no genuine dispute as to any material fact" 17 and concluding that Valdes had the right-of-way at the time of the collision, and that 18 Rubin's failure to yield to Valdes was the sole proximate cause of the accident. Fed. R. 19

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Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In the district 1 court's view, the evidence would not have permitted a reasonable factfinder to return a 2 verdict in Rubin's favor. We disagree. 3

I. Standard of Review 4 We review the district court's grant of summary judgment de novo. Borley v. United 5 States, 22 F.4th 75, 78 (2d Cir. 2021). When reviewing a grant of summary judgment, this 6 court "constru[es] the evidence in the light most favorable to the party against whom 7 summary judgment was granted and draw[s] all reasonable inferences in that party's 8 favor." Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021). "If reasonable minds 9 could differ as to the import of the evidence" and "if there is any evidence in the record 10 from any source from which a reasonable inference in the nonmoving party's favor may 11 be drawn, the moving party simply cannot obtain a summary judgment." R.B. Ventures, 12 Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997) (quotation marks and alterations omitted). 13

II. Discussion 14 Through the FTCA, Congress provides a "limited waiver by the United States of 15 its sovereign immunity and allows for a tort suit against the United States under specified 16 circumstances." Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) (quotation marks 17 omitted). "[T]he FTCA's liability rule incorporates state law." Martin v. United States, 605 18 U.S. 395, 410 (2025). "[A]n action under the FTCA exists only if the States in which the 19

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alleged misconduct occurred would permit a cause of action for that misconduct to go 1 forward." Carlson v. Green, 446 U.S. 14, 15 (1980). Because the accident occurred in 2 Brooklyn, Rubin's negligence claim is governed by New York tort law. The New York 3 Vehicle and Traffic Law ("VTL") defines the duties of motorists in New York, and "a 4 violation of the VTL constitutes negligence as a matter of law." Dooley v. United States, 83 5 F.4th 156, 163 (2d Cir. 2023). 6

Upon careful review of the record and the district court's summary judgment 7 opinion and order, we conclude that the corpus of facts does not lend itself to an award 8 of summary judgment against Rubin. At least two genuine disputes of material fact 9 require this case to proceed to a bench trial. 10

First, a genuine dispute exists as to who had the right-of-way at the moment of 11 collision. In finding that Valdes was not negligent, the district court reasoned that a 12 vehicle that is already "fully in the intersection" and has nearly completed its turn has 13 the right-of-way under New York case law. Rubin v. United States, No. 22-CV-393, 2024 14 WL 4350715, at *2−*3 (E.D.N.Y. Sept. 30, 2024). On appeal, Rubin argued for the first time 15 that VTL § 1141 is the critical law governing who has right-of-way in cases concerning a 16 left-hand turn.¹Under VTL § 1141, a driver "intending to turn left" through an 17

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intersection must "yield the right of way to any vehicle approaching from the opposite 1 direction which is within the intersection or so close as to constitute an immediate 2 hazard." N.Y. Veh. & Traf. Law § 1141. Put another way, a driver has a duty to avoid a 3 collision, if possible, even if the driver has the right-of-way. A reasonable factfinder could 4 find that Rubin was "so close as to constitute an immediate hazard" when Valdes 5 initiated his left turn, and that Rubin thus had the right-of-way. 6 Second, even if Valdes did have the right-of-way, a reasonable factfinder could 7 find him liable for comparative negligence in failing to avoid a possible collision. See 8 Carias v. Grove, 186 A.D.3d 1484, 1484 (N.Y. App. Div. 2020) ("Since there can be more 9 than one proximate cause of an accident, a defendant moving for summary judgment is 10 required to make a prima facie showing that he or she is free from fault."). Drivers with 11 the right-of-way still have "an obligation to keep a proper lookout and see what can be 12 seen through the reasonable use of his or her senses to avoid colliding with other 13 vehicles," as well as bicycles and electric scooters. Id.; see also N.Y. Veh. & Traf. Law 14 § 1146; id. § 1281(1) (providing that persons riding electric scooters are "granted all of the 15 rights and subject to all of the duties applicable to the driver of a vehicle and the rider of 16 provisions of the VTL in his opposition to the motion for summary judgment. See Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 220 (2d Cir. 2006) ("[A]ppeals courts may entertain additional support that a party provides for a proposition presented below.").

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a bicycle").²According to the district court, Valdes did not have time to avoid the 1 collision, and so did not breach his duty to keep a proper lookout. We are not persuaded. 2 It is undisputed that Valdes's view was obstructed by the white van when he initiated 3 his turn, and that he was thus unable to see the most right-hand portion of Avenue K's 4 eastbound traffic lane, where electric scooters and bicycles are required to travel. See N.Y. 5 Veh. & Traf. Law §§ 1234(a), 1284(1). A reasonable factfinder could find that, by failing 6 to proceed slowly through the intersection until he could see around the white van and 7 check for bicyclists and scooters, Valdes failed to keep a "proper lookout." There is thus 8 a genuine dispute of material fact as to whether Valdes was comparatively at fault for the 9 collision. 10

We believe that a summary judgment ruling based on the record before us, 11 therefore, is not appropriate. A factfinder must "weigh evidence" in the first instance 12 and determine under the circumstances both who had the right-of-way at the time of the 13 collision and whether the person with the right-of-way breached a duty to avoid the 14 collision if reasonably possible. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d 15 Cir. 1996).³Thus, there could be a finding in favor of either party or neither such that 16

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both could have proximately caused the collision. Accordingly, we vacate the grant of 1 summary judgment and remand the case for trial. 2

* * * 3 For the foregoing reasons, the judgment of the district court is VACATED and 4 the case is REMANDED. 5

FOR THE COURT: 6

CATHERINE O'HAGAN WOLFE, Clerk of Court 7 by the court without a jury"); see also 32 C.F.R. § 750.32(b).

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