Rivera v. The United States of America et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
YVETTE RIVERA,
Plaintiff,
– against –
THE UNITED STATES OF AMERICA, THE
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, THE UNITED
STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT, HOMELAND SECURITY
INVESTIGATIONS, and JUSTIN
KITTELSTAD,
Defendants.
MEMORANDUM & ORDER
20-cv-03764 (NCM) (ARL)
NATASHA C. MERLE, United States District Judge:
Plaintiff Yvette Rivera brings this negligence action under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 1402, 2671 et. seq., against defendants The United States
of America, The United States Department of Homeland Security (“DHS”), The United
States Immigration and Customs Enforcement, Homeland Security Investigations, and
Justin Kittelstad alleging that Kittelstad, 	while in 	the scope 	of his employment,
negligently operated a motor vehicle and struck her. See generally Compl., ECF No. 1.
Plaintiff moves for partial summary judgment on the issue of liability pursuant to Rule 56
of the Federal Rules of Civil Procedure, arguing that Kittelstad was negligent as a matter
of law and that this negligence was the sole proximate cause of her injuries. Mot. 4, 12. 1
For the reasons stated below, plaintiff’s motion is DENIED.
1 	The Court hereinafter refers to Plaintiff’s Memorandum of Law in Support of Their
Motion for Partial Summary Judgment, ECF No. 71, as the “Motion”; Defendants’
Memorandum of Law in Opposition to Plaintiff’s Motion for Partial Summary Judgment,
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BACKGROUND
The following facts are undisputed unless otherwise noted. 2 Plaintiff and Kittelstad
were involved in an accident on November 13, 2018, at the crosswalk of West 34th Street
and 11th Avenue in Manhattan, New York (“Subject Collision”). Pl. 56.1 Statement of
Material Facts (“Pl. 56.1”) ¶¶ 3–4, ECF No. 71-1; see also Defs. 56.1 Counterstatement of
Material Facts (“Defs. 56.1”) ¶¶ 3–4, ECF No. 72-1. Plaintiff was crossing the street when
she was struck by a DHS vehicle, which was being driven by Kittelstad in the course of his
employment with DHS. Pl. 56.1 ¶¶ 7, 13; see also Defs. 56.1 ¶¶ 7, 13.
Just prior to the Subject Collision, plaintiff “was on the northwest corner of West
34th Street and 11th Avenue,” attempting to cross 11th Avenue and continue eastbound.
Pl. 56.1 ¶ 11; see also Defs. 56.1 ¶ 11. Due to construction on 11th Avenue, there was only
one lane for northbound traffic and three lanes for southbound traffic. Pl. 56.1 ¶ 10; Defs.
56.1 ¶ 10. Kittelstad’s vehicle was on 34th Street facing eastbound in the left turn lane,
and Kittelstad was attempting to make a left turn onto the northbound lane of 11th
Avenue. Pl. 56.1 ¶¶ 8–9; Defs. 56.1 ¶¶ 8–9. At all relevant times, Kittelstad was acting
within the scope of his employment with DHS. Pl. 56.1 ¶ 7; Defs. 56.1 ¶ 7.
A traffic enforcement agent was at the intersection where the Subject Collision took
place. Pl. 56.1 ¶ 15; Defs. 56.1 ¶ 15. The traffic enforcement agent directed Kittelstad to
make a left turn after the light turned green. Pl. 56.1 ¶¶ 15–17; Defs. 56.1 ¶¶ 15–17. While
ECF No. 72, as the “Opposition”; and Plaintiff’s Reply in Support of Their Motion for
Partial Summary Judgment, ECF No. 73, as the “Reply.” Throughout this Order, page
numbers for docket filings refer to the page numbers assigned in ECF filing headers.
2 	Facts not contradicted by citations to admissible evidence are deemed admitted.
See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing
party . . . fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement,
that fact will be deemed admitted.”).
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plaintiff was walking in the crosswalk, plaintiff was struck on her right side by the front
of defendants’ vehicle. Pl. 56.1 ¶¶ 13–14, 21; Defs. 56.1 ¶¶ 13–14, 21. Plaintiff asserts that
she “was always in the crosswalk” (without defining the term “always”), Pl. 56.1 ¶ 14, while
defendants deny that plaintiff “was always in the crosswalk” and assert that “[p]laintiff
only entered the crosswalk after the light turned red for pedestrians,” Defs. 56.1 ¶ 14.
Kittelstad did not honk his horn. Pl. 56.1 ¶¶ 23–24; Defs. 56.1 ¶¶ 23–24. Plaintiff fell to
the ground after being struck. Pl. 56.1 ¶ 25; Defs. 56.1 ¶ 25.
NYPD Officer Steysha Ramos created a Police Accident Report about the Subject
Collision. Kittelstad Dep. at 93, Ex. E (“Police Accident Report”), ECF No. 71-7; see also
Certified NYPD Motor Vehicle Collision Incident Report (“NYPD Collision Report”), ECF
No. 71-8; Pl. 56.1 ¶ 26; Defs. 56.1 ¶ 26. 3 Kittelstad was issued a police summons, which
was dismissed. Kittelstad Dep. at 100, Ex. H (“Summons Decision”).
LEGAL STANDARD
The standard for summary judgment is well settled. Pursuant to Rule 56(a) of the
Federal Rules of Civil Procedure, summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law” on a claim or defense. Fed. R. Civ. P. 56(a). The same
standard applies to motions for partial summary judgment where the movant identifies a
part of a claim or defense for which summary judgement is sought. Fed. R. Civ. P. 56(a).
3 	When ruling on a motion for summary judgment, a district court may rely on any
material that would be presented in admissible form at trial. Lyons v. Lancer Ins. Co., 681
F.3d 50, 57 (2d Cir. 2012). Certified police reports are considered admissible for a motion
for summary judgment. See Breeden v. City of New York, No. 09-cv-04995, 2014 WL
173249, at *5 (E.D.N.Y. Jan. 13, 2014).
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The movant bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
meets their initial burden, the non-moving party must provide evidence of specific facts
establishing a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Facts are in genuine dispute when “the jury could reasonably find for”
the non-moving party based on the evidence in the record. Borley v. United States, 22
F.4th 75, 78 (2d Cir. 2021). The court is to believe the evidence of the non-movant and
draw all justifiable inferences in their favor, Anderson, 477 U.S. at 255, but the non-
movant must still do more than merely assert conclusions that are unsupported by
arguments or facts. Bellsouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d
Cir. 1996).
The court need only consider admissible evidence, and it need not leave every
evidentiary stone unturned. Looney v. Macy’s Inc., 588 F. Supp. 3d 328, 340 (E.D.N.Y.
2021). “The rules governing the admissibility of evidence on a summary judgment motion
are the same as those governing admissibility at trial, and the district court has broad
discretion in choosing whether to admit evidence.” Glowczenski v. Taser Int’l, Inc., 928
F. Supp. 2d 564, 569 (E.D.N.Y. 2013), aff’d in part, dismissed in part, 594 F. App’x 723
(2d Cir. 2014).
“Summary judgment is difficult to obtain in negligence actions because whether
conduct is ‘negligent’ is a factual determination in all but the most extreme situations.”
Ortiz v. Rosner, 817 F. Supp. 348, 350-51 (S.D.N.Y. 1993) (citing INA Aviation Corp. v.
United States, 468 F. Supp. 695, 699 (E.D.N.Y. 1979) (“As a general proposition,
negligence questions are properly resolved at trial because, upon a motion for summary
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judgment, a court may not try issues of fact; it may only determine whether there are
factual issues to be tried.”), aff’d, 610 F.2d 806 (2d Cir. 1979)).
DISCUSSION
The FTCA waives the sovereign immunity of the United States in limited
circumstances. In relevant part, the FTCA authorizes suits against the federal government
to recover money damages for property and personal injuries “caused by the negligent or
wrongful act or omission of any employee . . . while acting within the scope of his . . .
employment, under circumstances where the United States, if a private person, would be
liable . . . in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). Because the Subject Collision took place in New York State, the
substantive law of New York applies to this negligence suit. Agyin v. Razmzan, 986 F.3d
168, 184 (2d Cir. 2021) (“The ‘law of the place’ here is New York law because the relevant
conduct took place in New York.”).
Under New York law, “[a] plaintiff in a negligence action moving for summary
judgment on the issue of liability must establish, prima facie, that the defendant breached
a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of
the alleged injuries.” Tsyganash v. Auto Mall Fleet Mgmt., Inc., 83 N.Y.S.3d 74, 74 (N.Y.
App. Div. 2018); see also Guerrero v. Loiacono, 688 F. Supp. 3d 50, 59–60 (E.D.N.Y.
2023) (denying plaintiff’s motion for summary judgment on the ground that “sharp
conflicts” of factual issues existed as to liability).
“When a defendant violates a statute that defines the degree of care to be used
under certain circumstances, the violation constitutes negligence per se if (1) [the
defendant] causes the injury, (2) the plaintiff is a member of the class intended to be
benefited by the statute, and (3) the statute is intended to protect against the very hazard
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that caused the plaintiff’s injury.” Vaselli v. United States, No. 12-cv-06221, 2014 WL
4961421, at *5 (E.D.N.Y. Oct. 3, 2014) (quoting Mauro v. Costco Wholesale Corp., No.
09-cv-01391, 2013 WL 3816731, *4 (E.D.N.Y. Jul. 22, 2013)). “A violation of [New York
Vehicle and Traffic Law (“VTL”)] constitutes negligence [per se].” Dooley v. United
States, 83 F.4th 156, 163 (2d Cir. 2023) (citing Desio v. Cerebral Palsy Transp., Inc., 994
N.Y.S.2d 681, 682 (N.Y. App. Div. 2014)); see, e.g., Du v. Party Perfect Rentals LLC, 724
F. Supp. 3d 68, 73–74 (E.D.N.Y. 2024) (denying plaintiff’s motion for partial summary
judgment alleging negligence per se for failing to establish that the defendant driver
violated provisions of the VTL).
Under VTL § 1146(a), “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.” VTL § 1146(b)(2) provides that,
[i]f such driver of a motor vehicle causes physical injury while
failing to exercise due care in violation of subdivision (a) of
this section, then there shall be a rebuttable presumption that,
as a result of such failure to exercise due care, such person
operated the motor vehicle in a manner that caused such
physical injury.
VTL § 1111(a)(1) states “[t]raffic, except pedestrians, facing a steady circular green signal
may proceed straight through or turn . . . left[.] 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.”
Here, plaintiff argues that she is entitled to partial summary judgment on the
question of defendants’ liability because Kittelstad breached his duty of care as a
reasonably prudent driver and defendants’ negligence was the sole proximate cause of the
Subject Collision. Mot. 12. Specifically, plaintiff argues Kittelstad violated VTL § 1146, by
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“failing to keep a proper lookout, and take any evasive maneuvers to avoid the collision,”
Mot. 10–12, and violated VTL § 1111(a)(1) by failing to yield to pedestrians who are
lawfully within a crosswalk when turning at a green light, Reply 3. Plaintiff argues
defendants’ violations of VTL §§ 1146 and 1111(a)(1) constitute negligence per se.
In support of this, plaintiff submits a Rule 56.1 statement asserting that the
undisputed evidence shows that Kittelstad did not see plaintiff in the crosswalk prior to
the Subject Collision, Pl. 56.1 ¶ 20, that plaintiff was in the crosswalk when she was struck,
Pl. 56.1 ¶ 14, and that Kittlestad did not honk the horn prior to the Subject Collision, Pl.
56.1 ¶¶ 23–24. Plaintiff’s 56.1 statement also contends that Kittelstad did not press the
breaks prior to the Subject Collision. Pl. 56.1 ¶ 23. These facts, plaintiff claims, run counter
to defendants’ duties under VTL §§ 1111 and 1146 as well as the common law duty to “see
that which he should have seen through the proper use of his sense.” Mot. 12–13 (quoting
Lieb v. Jacobson, 163 N.Y.S.3d 586, 586 (N.Y. App. Div. 2022)); Reply 3.
However, the parties dispute material facts surrounding the Subject Collision. This
includes whether the pedestrian walk signal was green such that plaintiff had the right of
way while crossing, as well as whether Kittelstad saw plaintiff prior to the Subject
Collision and took steps to avoid striking plaintiff, such as applying his breaks. Thus,
plaintiff fails to eliminate all triable issues of fact as to whether defendants violated the
VTL.
First, while plaintiff contends that the pedestrian walk sign was in her favor and
that she remained in the crosswalk while crossing the street, Pl. 56.1 ¶ 14, defendants
contend that “[a]t the time that Kittelstad began and completed his left turn with a green
turning [arrow] in his favor, plaintiff entered the crosswalk while there was a red light for
pedestrians.” Defs. 56.1 ¶ 11(v). While VTL § 1111(a)(1) creates a duty on behalf of “[a]
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driver who faces a green light . . . to yield the right-of-way to pedestrians who are lawfully
within a crosswalk,” Lieb, 163 N.Y.S.3d at 586, plaintiff has not established that she had
the right of away and was thus lawfully within the crosswalk when she was struck, see id.
(discussing liability where it was undisputed that plaintiff was hit in the crosswalk with
the pedestrian light in her favor). Given the nature of the evidence presented by both
parties—namely party testimony—whether plaintiff was properly within the crosswalk
when struck will turn at least in part on a determination of credibility, which is not
appropriate at this stage. At summary judgment, “[c]redibility assessments, choices
between conflicting versions of the events, and the weighing of evidence are matters for
the jury, not for the court.” Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); see also
Kee v. City of New York, 12 F.4th 150, 166 (2d Cir. 2021) (“At the summary judgment
stage, the district court is not permitted to make credibility determinations or weigh the
evidence.”).
Plaintiff also relies on the NYPD Collision Report listing “Failure to Yield Right-of-
Way” under “Contributing Factors” to support her contention that she, not Kittelstad, had
the right of way at the time of the Subject Collision. NYPD Collision Report at 3. However,
despite this report, a reasonable jury could find defendants did not violate the VTL. The
Report was based on the parties’ recounting of events to the police officer who arrived
minutes after the Subject Collision. Defs. 56.1 ¶ 28.i.; cf. Rivera Dep. 51:17–52:6, ECF No.
71-6. Moreover, the summons received by Kittlestad does not indicate that plaintiff had
the right of away. Summons Decision (“Here, the summons fails to allege the essential
element that the pedestrian had the right of way when the injury occurred.”). Further, the
parties agree that a traffic enforcement officer directed Kittelstad to make a left turn at
the intersection after the light turned green. Pl. 56.1 ¶¶ 15–17; Defs. 56.1 ¶¶ 15–17. It is
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unclear from the record how the green light facing Kittelstad and the pedestrian walk sign
were synchronized, however, plaintiff has not established that there is no triable issue as
to this critical sequence of events. Since it appears from the evidence thus far that
Kittelstad lawfully made a lefthand turn, the question is whether the pedestrian walk
signal was also in plaintiff’s favor at the time she was struck. It is this question of fact that
will have to be decided in order to determine whether Kittelstad violated the VTL. “Where
the parties’ conflicting accounts . . . coupled with the police report . . . suggest[] that the
accident could have occurred in many ways, one version of which suggests that
[d]efendants’ were nonnegligent, [p]laintiff has failed to make out a prima facie case.”
Guerrero, 688 F. Supp. 3d at 61 (quoting Mangual v. Pleas, 02-cv-08311, 2004 WL
736817, at *3 (S.D.N.Y. Apr. 6, 2004)).
Moreover, the parties dispute whether plaintiff saw defendants’ vehicle prior to the
Subject Collision, compare Pl. 56.1 ¶¶ 11, 22, with Defs. 56.1 ¶¶ 11, 22, and whether
Kittlestad saw plaintiff before his vehicle struck plaintiff, compare Pl. 56.1 ¶ 20, with Def.
56.1 ¶ 20. Further, the parties dispute whether Kittelstad pressed his breaks to avoid the
Subject Collision prior to striking plaintiff. Compare Pl. 56.1 ¶ 23, with Defs. 56.1 ¶¶ 19,
23–24. Contrary to plaintiff’s argument, Kittelstad testified that when he saw plaintiff in
the crosswalk he applied “heavy” pressure to his breaks. Kittelstad Dep. 35:4-11; see also
Def. 56.1 ¶ 23. A reasonable juror could credit Kittlestad’s testimony that he took evasive
measures to prevent the collision as soon as Kittelstad saw plaintiff and thus acted with
due care. See VTL § 1146.
Plaintiff argues that even if there is comparative fault, plaintiff is still entitled to
summary judgment. Reply 3. To be clear, New York courts have generally held that a
plaintiff does not bear the burden of proving the absence of comparative fault to be
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entitled to summary judgment on the issue of liability. Rodriguez v. City of New York,
101 N.E.3d 366, 374 (2019); see also CPLR § 1411 (establishing New York’s rule of
comparative negligence). Here, however, even setting aside the question of plaintiff’s
potential negligence, triable issues of fact remain as to defendants’ own negligence and
whether Kittelstad exercised due care.
In sum, drawing all reasonable inferences in favor of the non-moving party, a
reasonable jury could find that Kittelstad did not violate the VTL and was not negligent.
Accordingly, because there remains at least one “genuine issue of material fact,”
Anderson, 477 U.S. at 250, summary judgment is not appropriate.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for partial summary judgment is
denied. In accordance with the Court’s Individual Practice Rule IV.A, the parties shall file
a proposed joint pretrial order by February 18, 2026.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: 	January 15, 2026
Brooklyn, New York
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