Summary
In Lopez v Garcia (67 AD3d 558 [1st Dept 2009]), we reversed the grant of the plaintiff's motion for partial summary judgment on liability, finding that the plaintiff did not, as a matter of law, eliminate all issues of comparative negligence.
Summary of this case from Rodriguez v. City of New YorkOpinion
No. 1514.
November 19, 2009.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 2, 2009, which, in an action for personal injuries sustained when plaintiff and defendants' vehicle came into contact, granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied and the case remanded for further proceedings.
Richard T. Lau Associates, Jericho (Joseph G. Gallo of counsel), for appellants.
Noreen M. Giusti, Kew Gardens, for respondent.
Before: Tom, J.P., Friedman, Moskowitz, Freedman and Abdus-Salaam, JJ.
Assuming, arguendo, that plaintiff satisfied her initial burden on the motion with evidence that defendants' vehicle hit her as she was crossing the street in the crosswalk, with a green light and walk sign in her favor, she would not be entitled to summary judgment. Issues of fact as to plaintiff's comparative negligence are raised by (1) plaintiffs statement in her affidavit that she did not see defendants' vehicle before she was struck ( see Thoma v Ronai, 82 NY2d 736); (2) the police accident report, which plaintiff submitted in support of her motion because it states that defendant driver told the police officer that plaintiff "was in his blind spot," but which also states that the driver was "executing a legal left turn" and that a witness said that plaintiff "never looked when walking into the roadway" ( see id.; Cator v Filipe, 47 AD3d 664, citing, inter alia, Schmidt v Flickinger Co., 88 AD2d 1068, 1068 [having right-of-way in a crosswalk does not absolve a pedestrian "from looking, while so crossing, for vehicles approaching which deny her that right"]); and (3) defendant driver's affidavit in opposition stating, not inconsistently with the police report, that as he was straightening out his vehicle after making a left turn with a green light, plaintiff, whom he had noticed before the accident running "with other people approximately her age," ran into "the front passenger bumper of my vehicle, on the right side," "in a place where I could not see her." We note that plaintiff made her motion for summary judgment two months after joinder of issue, before a preliminary conference had been conducted and before defendants had a fair opportunity to depose plaintiff or the witness mentioned in the police report (CPLR 3212 [f]; see Bradley v Ibex Constr. LLC, 22 AD3d 380).