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Miller v. Sisters of the Order of St. Dominic

Appellate Division of the Supreme Court of New York, Second Department
Jun 7, 1999
262 A.D.2d 373 (N.Y. App. Div. 1999)

Summary

granting defendant's motion for summary judgment where there was "no evidence" on the record that defendant operated the car in a negligent manner, and it was "uncontested" that neither the defendant, nor the two eyewitnesses in her car, saw the plaintiff until one or two seconds prior to collision.

Summary of this case from Jin Yue You v. Pedro Teixeira, Inc.

Opinion

Submitted April 28, 1999

June 7, 1999

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Golia, J.), dated September 10, 1998, which denied their motion for summary judgment dismissing the complaint.

Mulholland, Minion Roe, Williston Park, N.Y. (Ronald J. Morelli of counsel), for appellants.

Simonson Hess Leibowitz, P.C., New York, N.Y. (Edward S. Goodman of counsel), for respondent.

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, HOWARD MILLER, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was allegedly injured when he was hit by a car owned by the defendant Sisters of the Order of St. Dominic and driven by the defendant Sister Marie Brady. The testimony of the only two nonparty eyewitnesses to the accident demonstrates that suddenly, and without any warning, the plaintiff walked or ran out from between a stopped bus and a parked taxi cab into Sister Brady's lane of traffic, approximately 10 to 15 feet from her car, which was traveling about 20 to 25 miles per hour. There is no evidence that Sister Brady operated the car in a negligent manner, and it is uncontested that neither Sister Brady, nor the two eyewitnesses in her car, saw the plaintiff until one or two seconds before the car struck him.

In light of this evidence, the defendants were entitled to summary judgment ( see, Rucker v. Fifth Ave. Coach Lines, 15 N.Y.2d 516, 517-518, cert denied 382 U.S. 815; Gonzalez v. 98 Mag Leasing Corp., 261 A.D.2d 508 [2d Dept., May 17, 1999]; Brown v. City of New York, 237 A.D.2d 398; Kiernan v. Hendrick, 116 A.D.2d 779, 780-781).


Summaries of

Miller v. Sisters of the Order of St. Dominic

Appellate Division of the Supreme Court of New York, Second Department
Jun 7, 1999
262 A.D.2d 373 (N.Y. App. Div. 1999)

granting defendant's motion for summary judgment where there was "no evidence" on the record that defendant operated the car in a negligent manner, and it was "uncontested" that neither the defendant, nor the two eyewitnesses in her car, saw the plaintiff until one or two seconds prior to collision.

Summary of this case from Jin Yue You v. Pedro Teixeira, Inc.

In Miller, there was uncontested testimony offered on behalf of the defendant by witnesses who first saw the injured plaintiff at the same moment as the driver, and the plaintiff was unable to present sufficient evidence of negligence on the part of the driver to raise a triable issue of fact.

Summary of this case from Garcia v. U.S. Food Service, Inc.

In Miller v Sisters of Order of St. Dominic (262 AD2d 373, lv denied 94 NY2d 763), the driver was traveling between 20 and 25 miles per hour and there is no indication that she had her foot on the brake pedal as the driver in this case did while traveling merely five miles per hour.

Summary of this case from Brown v. Muniz
Case details for

Miller v. Sisters of the Order of St. Dominic

Case Details

Full title:BRIAN MILLER, respondent, v. SISTERS OF THE ORDER OF ST. DOMINIC, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 7, 1999

Citations

262 A.D.2d 373 (N.Y. App. Div. 1999)
691 N.Y.S.2d 168

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