Summary
In Thoma, the plaintiff was crossing East 79th Street along the west side of First Avenue, with the walk signal in her favor, when she was hit while in the crosswalk by a van that had been driving northbound on First Avenue, which made a left turn onto East 79th Street heading westbound.
Summary of this case from Quintavalle v. PerezOpinion
Decided September 9, 1993
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Charles E. Ramos, J.
Sean E. Stanton, New York City, for appellant.
Seligson, Rothman Rothman, New York City (Alyne I. Diamond of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Plaintiff commenced this negligence action to recover damages for personal injuries suffered by her as a pedestrian when she was struck by defendant's automobile in an intersection. Defendant interposes comparative negligence.
The submissions to the nisi prius court on plaintiff's motion for summary judgment, consisting of her affidavit and the police accident report, demonstrate that she may have been negligent in failing to look to her left while crossing the intersection. Plaintiff's concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care. Accordingly, plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact and the lower courts correctly denied summary judgment.
Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur in memorandum; Judge LEVINE taking no part.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, etc.