Marie Castiglione, et al., Respondents,v.Robert Kruse, et al., Appellants.BriefN.Y.May 3, 2016To be Argued by: ANDREA E. FERRUCCI TIME REQUESTED: 10 MINUTES ~upr.em.e illnurt nf fq.e ~faf.e nf N.em tnrk FRANCIS J. SCAHILL ANDREA E. FERRUCCI of Counsel APPELLATE DIVISION-SECOND DEPARTMENT MARIE CASTIGLIONE and FRANK CASTIGLIONE, Plaintiffs-Appellants, - against- 2014-10307 ROBERT KRUSE and KAREN KRUSE, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS PICCIANO & SCAHILL, P.C. Attorneys for Defendants-Respondents 900 Merchants Concourse, Suite 310 Westbury, New York 11590 (516) 294-5200 Suffolk County Clerk's Index No. 00356/12 Press of Fremont Payne, Inc. • 55 Broad Street, Third Floor, New York, NY 10004 • (212) 966-6570 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................ 2 QUESTION PRESENTED ............................................................................. 4 COUNTER-STATEMENT OF FACT ..................................................... 5 ARGUMENT I. THE PLAINTIFFS-APPELLANTS DID NOT ESTABLISH THEIR PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW. A. Contrary to the Plaintiffs-Appellants' assertions, there is a question of fact as to whether or not the Plaintiff-Appellant was crossing at an "unmarked" crosswalk or a place "other than a crosswalk" at the time of the subject accident ........................... 21 B. There is a question of fact as to whether or not the Plaintiff- Appellant maintained a proper look-out while crossing the street, and therefore free from comparative negligence ........................ 28 C. There are issues regarding the credibility of the witnesses which requires a determination by a jury .......................................... 31 IL ASSUMING, ARGUENDO, THAT THE PLAINTIFFS-APPELLANTS MET THE INITIAL PRIMA FACIE BURDEN, THE DEFENDANTS- RESPONDENTS RAISED TRIABLE ISSUES OF FACT .................... 34 CONCLUSION .................................................................................. 39 CERTIFICATE OF COMPLIANCE WITH N.Y. COURT RULES§ 670.10.3(f) .................................................... 40 1 TABLE OF AUTHORITIES Statutes Vehicle and Traffic Law §1 lO(a) ................................................ 22, 23, 28 Vehicle and Traffic Law§ 120(a) ......................................................... 23 Vehicle and Traffic Law§ 1152(a) ................................................... 22, 25 Cases Alli v. Lucas, 72 AD 3d 994 (2d Dept. 2010) .......................................... .28 Brown v. Kass, 91Ad3d 894 (2d Dept. 2012) ....................................... 23, 33 Campbell v. Crimi, 267 AD 2d 343 (2d Dept. 1999) ................................... 24 Cox v. Nunez, 23 AD 3d 427 .............................................................. 34 Ferrante v. American Lung Assn., 90 NY 2d 623 (1997) ............................... 23 Garcia v. El-Zien, 90 AD 3d 601 (2d Dept. 2011) ..................................... .34 Garrido v Puente, 114 AD 3d 722 (2d Dept. 2014) ................................ 30, 37 Gause v. Martinez, 91AD3d 595 (2d Dept. 2012) ..................................... 23 Hopkins v. Haber, 39 AD 3d 471 (2d Dept. 2007) ................................. 22, 24 Kochloffel v. Giordano, 99 AD 2d 798 (2d Dept. 1984) .......................... 19, 28 Lopez v. Beltre, 59 AD 3d 683 (2d Dept. 2009) .................................... 22, 24 Lopez v. Reyes-Flores, 52 AD 3d 785(2d Dept. 2008) ................................. 34 Lum v. Wallace, 70 AD 3d 1013 (2d Dept. 2011) ........................ 30, 31, 36, 37 Mackensie v. City of New York, 81AD3d 699 (2nd Dept. 2011) ................... .33 Melchiorre v. Dreisch, 95 AD 3d 845 (2d Dept. 2012) ....................... 30, 31, 36 2 Moskowitz v. Israel, 209 AD 2d 676(2d Dept. 1994) ................................. .24 Pareja v. Brown, 18 AD 3d 626 (2d Dept. 2005) ....................................... 26 Parrinello v. Davis, 2 AD 3d 610 (2d Dept. 2003) ...................................... 25 Rodgers v. Duffy, 87 AD 3d 1126 (2011) ............................................... .34 Roman v. Al Limousine, Inc., 76 AD 3d 552 (2d Dept. 2010) .................. 31, 36 Rosa v. Scheiber, 89 AD 3d 827 (2d Dept. 2011) ....................................... 27 Popek v. State, 279 AD 2d 622 (2d Dept. 2001) .................................... 30, 36 Thoma v. Ronai, 189 AD 2d 635 (1st Dept. 1993) ............................ 29, 35, 36 Schmidt v. S.M. Flickinger Co., 88 Ad 2d 1068 (3rd Dept. 1982) .................... 36 Yelder v. Walters, 64 AD 3d 762 (2d Dept. 2009) ...................................... 35 3 QUESTION PRESENTED 1. Is the question of whether a person was within an unmarked crosswalk at the time of an accident a factual matter for a jury to resolve? This lower court answered this question in the affirmative. 4 COUNTERSTATEMENT OF FACTS A. Procedural History This action arose as the result of a motor vehicle accident that occurred on October 19, 2011, at approximately 6:40 a.m., at the intersection of Montauk Highway and Keith Lane, Suffolk County, New York. (R. 23-24, 38,83-84, 169- 170). The Plaintiffs-Appellants, Marie Castiglione and Frank Castiglione (hereinafter "Castiglione") instituted the instant action by the service of a Summons and Complaint dated December 19, 2011. (R. 21-28.) Issue was joined by the service of a Verified Answer on behalf of the Defendants-Respondents, Robert Kruse and Karen Kruse (hereinafter "Kruse") dated February 3, 2011. (R. 29-35.) Discovery m this matter occurred, and following the completion of discovery, the Plaintiffs-Appellants, Castiglione, by their attorneys moved for Summary Judgment on the issue of liability. (R. 7-250.) The Defendants- Respondents, Kruse, opposed the Plaintiff-Appellant's motion for Summary Judgment on the issue of liability and also cross-moved for Summary Judgment on the issue of liability. (R.262-269; 251-261 ). The Plaintiffs-Appellants, Castiglione, served an Affirmation in Reply and Opposition to Defendants' Cross-Motion. (R. 270-282.) The Defendants-Respondents, Kruse, served a Reply Affirmation. (R. 5 283-286.) Following the submission of all papers, the Court issued an Order dated September 13, 2013. (R. 3-6.) The instant appeal ensued. B. Deposition Testimony of the Parties The Plaintiff-Appellant, Marie Castiglione, appeared for an Examination Before Trial on July 19, 2012. (R. 75-155.) Ms. Castiglione testified that she was involved in a motor vehicle accident on October 19, 2011, at approximately 6:40 a.m., at the intersection of Montauk Highway and Keith Lane, West Islip, New York. (R. 83-84.) At the time of the accident it was raining moderately, and it was still dark out. (R. 91.) At the time of the accident the Plaintiff-Appellant was carrying an umbrella in the open position. (R. 93-94.) Street lights in the vicinity were functioning and illuminated, but they were located on the south side of Montauk Highway, which was the opposite side of the roadway from where the Plaintiff-Appellant was located. (R. 91-93, 102-103.) Montauk Highway was described as a two-way roadway with one lane in either direction (east and west). (R. 99 ~) At the subject location there was also a left tum lane located on the westbound side for traffic to tum into the hospital parking lot. (R. 99.) Prior to the accident occurring, the Plaintiff-Appellant was located on the northeast comer of Keith A venue and intending to cross to the south side. (R. 93, 95.) There were no pedestrian traffic controls that governed the comer where the Plaintiff-Appellant was crossing. (R. 95.) When the Plaintiff-Appellant first 6 reached the northeast comer of Keith A venue, the traffic light for traffic in that direction was red. (R. 97.) The Plaintiff-Appellant waited at that comer a "few minutes" before she began to cross the street. (R. 94-95.) While waiting at the northeast comer, the Plaintiff-Appellant did not look for any traffic waiting at the traffic light on Keith Avenue. (R. 97.) The Plaintiff-Appellant indicated that traffic facing south on Keith A venue would be required to tum either right or left at Montauk Highway. (R. 97.) The Plaintiff-Appellant indicated that there was a crosswalk located on the southeast side of Keith Lane, but that she chose not to cross at that location because "from where [she] parked [her] car, [she] would have had to cross Keith, Montauk, and then back again. The cars that are coming out of Good Sam that go left, you would have to wait for those cars, so its easier for [her] to walk straight across." (R. 96.) Once the traffic light turned red for traffic traveling on Montauk Highway, the Plaintiff-Appellant began to cross the street. (R. 98.) As the Plaintiff-Appellant began crossing the street there was one vehicle stopped at the red traffic light on the westbound side. (R. 100.) As the Plaintiff-Appellant began crossing the roadway she did not see any vehicles moving from Keith Lane to Montauk Highway, but she did observe one vehicle turning left out of the hospital parking lot, heading west. (R. 103-104.) The vehicle exiting the hospital did not cross in front of the Plaintiff-Appellant. (R. 104.) 7 As the Plaintiff-Appellant was crossing the eastbound side of Montauk Highway on, she was involved in an accident with a motor vehicle. (R. 104-105.) Prior to leaving the sidewalk the Plaintiff-Appellant looked right and left, but did not observe any vehicles. (R. 106-107.) From the point the Plaintiff-Appellant left the sidewalk up until the accident occurred she was only looking straight. (R. 106.) Once the Plaintiff-Appellant entered onto Montauk Highway from the curb she never looked right or left again. (R. 107.) The Plaintiff-Appellant never saw the vehicle involved in the contact prior to the accident. (R. 104, 109.) Prior to the accident the Plaintiff-Appellant was walking at a moderate pace still holding her open umbrella. (R. 105.) The Plaintiff-Appellant cannot estimate how many steps she took prior to the accident occurring; however, she had crossed over the westbound side of Montauk Highway, and had crossed over the left tum lane located on the westbound side of Montauk Highway at the time of the accident. (R. 107.) The east and westbound side of Montauk Highway are separated by a painted line. (R. 108.) The Plaintiff-Appellant first became aware of the accident when she felt contact. (R. 109.) The Plaintiff-Appellant felt the front driver's side tire roll over her right foot, and the driver's side mirror struck the Plaintiff-Appellant's right arm, breast and shoulder. (R. 113.) At the time of the impact the plaintiff was looking straight towards the hospital with her umbrella in her right hand, with it 8 located over her head. (R. 109.) The impact took place "around the halfway point" of the eastbound lane of Montauk Highway. (R. 109-110.) At the time of impact the rain was still moderate. (R. 110.) The Plaintiff-Appellant does not know the speed of the vehicle that was involved in the impact. (R. 114.) After the impact, the vehicle involved stopped less than five feet from the impact point. (R. 11 7.) Although police arrived at the scene after the accident the Plaintiff-Appellant did not speak with them at the scene. (R. 119.) The Plaintiff-Appellant, identified "Defendant's Exhibit "A"" as depicting Good Samaritan Hospital, the traffic light and intersection of Keith Lane and Montauk Highway. (R. 87, 156.) Although Exhibit "A" depicts the intersection of Keith Lane and Montauk Highway, it does not show the location of the impact, which the Plaintiff-Appellant indicated was more left than what the photograph showed. (R. 111.) The Plaintiff-Appellant identified Defendant's Exhibits "B" and "C" as depicting the intersection of Montauk Highway and Keith Lane. (R. 101.) Exhibit "B" depicted the crosswalk located at the subject intersection connecting the northwest and southwest comers of Montauk Highway. (R. 101.) The Plaintiff- Appellant indicated that Defendant's Exhibits "D" and "E" show the location of the accident. (R. 115.) Defendant's Exhibit "E" depicted the impact location. (R. 115.) 9 The Defendant-Respondent, Kruse, appeared for an Examination Before Trial on July 19, 2012. (R. 164- 203.) Ms. Kruse was involved in a motor vehicle accident on October 19, 2011 at approximately 6:30 a.m., at the intersection of Keith Lane and Montauk Highway, while operating a Ford 500. (R. 169-170, 179.) Montauk Highway was described as a two-way roadway that travels east and west. (R. 171.) Montauk Highway was described as having one lane traveling eastbound, one lane traveling westbound and a left tum lane located on the westbound side of traffic, heading into Good Samaritan Hospital's driveway. (R. 171.) Keith Lane was described as a two-way roadway that travels north and south. (R. 170.) At the subject intersection, Keith Lane ends. (R. 171.) Good Samaritan Hospital's drive is located on the opposite side of Montauk Highway from Keith Lane, but slightly offset, more to the east. (R. 1 71.) The intersection of Montauk Highway and Keith Lane is controlled by a traffic light. (R. 1 72-173.) At the time of the subject accident it was still dark outside, and pouring rain. (R. 174.) There were street lights located on the south side (the Good Samaritan Hospital side) of Montauk Highway. (R. 174.) Those street lights were located on either side of the Good Samaritan Hospital driveway, with no streets lights located on the Keith Lane side of the roadway. (R. 175.) The street lights were functioning on the date of the accident, but the intersection was not "well lit". (R. 175.) 10 Prior to the accident occurring Ms. Kruse had been traveling south on Keith Lane and had brought her vehicle to a stop at the intersection for a red light. (R. 170, 184-185.) The Jeep in "Defendant's Exhibit "A" " is demonstrative of the position and location of Ms. Kruse's vehicle while she was stopped at the red light. (R. 203, 156.) Immediately prior to and at the time of the accident Ms. Kruse's headlight and windshield wipers were on and functioning. (R. 181.) Ms. Kruse's vehicle remained stopped for approximately one minute until the traffic light turned green. (R. 186, 189.) The traffic light turned green and Ms. Kruse observed a motor vehicle exiting the Good Samaritan parking lot and turning left (to the west) in front of her vehicle. (R. 189.) Ms. Kruse remained stopped at the intersection to allow the vehicle to complete its left tum and then began proceeded into the intersection to make her left turn. (R. 190-191.) Ms. Kruse looked left and right before beginning her tum. (R. 191.) Ms. Kruse observed one vehicle stopped in the left tum lane of westbound traffic, one vehicle stopped in the right through lane of westbound traffic and one vehicle stopped on the eastbound direction of traffic, with an ambulance stopped in the eastbound lanes behind that other vehicle. (R. 190-191.) Ms. Kruse did not see anyone crossing the street when she looked left and right, all that she observed was "a lot of rain". (R. 191.) As Ms. Kruse was in the process of making her tum, and looking forward as she turned, she felt an impact to the driver's side of her vehicle. (R. 192.) At the 11 time Ms. Kruse felt the impact, she was traveling approximately five to six ( 5-6) miles per hour, and was located in the eastbound lane of Montauk Highway. (R. 193, 198.) Ms. Kruse was traveling at a slow rate of speed since it was dark out, and pouring rain, making the roads slippery. (R. 193.) The impact with the pedestrian occurred with the driver's side door of Ms. Kruse's vehicle. (R. 193.) Ms. Kruse believed that the pedestrian, who was holding an umbrella, was located about halfway in the middle of the eastbound lane at the time of impact. (R. 198- 199.) At the moment of impact Ms. Kruse's vehicle was on an angle, in the process of completing the tum when she felt the impact to the drivers' side. (R. 198.) Ms. Kruse's vehicle did not sustain any significant damage, but simply some scratches, a dent, and some damage to her side-view mirror. (R. 198-199.) Following the impact a female police officer arrived at the scene and Ms. Kruse informed the officer that "someone hit [her] car." (R. 197.) The non-party witness, David Cabrera, appeared for an Examination Before Trial on March 21, 2013. (R. 204- 235.) On October 19, 2011, Mr. Cabrera was operating a 1999 Saturn, at approximately 6:45 -7:00 a.m., when he witnessed a motor vehicle accident in front of Good Samaritan Hospital on Montauk Highway. (R. 211.) Montauk Highway was described as a two-way roadway (east and west) with two lanes in each direction. (R. 211-212.) At the time of the accident Mr. 12 Cabrera had been traveling westbound. (R. 211.) At the time of the accident it was dark out and moderately raining. (R. 213-214.) Prior to the accident occurring Mr. Cabrera's motor vehicle had been stopped at the traffic light, located at the subject intersection, on the westbound side of Montauk Highway for approximately ten (10) seconds. (R. 214-215.) Mr. Cabrera first observed the Plaintiff-Appellant pedestrian when she first crossed in front his vehicle, as she was walking south. (R. 215.) Mr. Cabrera did not see the Plaintiff-Appellant before she began crossing the street. (R. 215.) Mr. Cabrera first took notice of the Plaintiff-Appellant when she looked at him and smiled while she was crossing the street. (R. 215.) At the time the Plaintiff-Appellant was carrying a bag and an umbrella. (R. 216.) The Plaintiff- Appellant was crossing the roadway at a comer and was walking towards the entrance to the hospital. (R. 216-217.) Although Mr. Cabrera initially testified that he did not see the Plaintiff- Appellant until she began crossing in front of his vehicle, which was located in the left lane of westbound Montauk Highway, he then amended his testimony to indicate that the Plaintiff-Appellant looked before crossing the street. (R. 215, 21 7, 233-234.) Mr. Cabrera testified that the traffic light turned red, two to three seconds elapsed, and then the Plaintiff-Appellant began crossing the street. (R. 13 217.) Mr. Cabrera asserts that the Plaintiff-Appellant looked to make sure the vehicles stopped then she crossed. (R. 21 7.) Mr. Cabrera observed the actual impact between the Plaintiff-Appellant and the Defendant-Respondent's vehicle. (R. 217.) At the time of the impact, Mr. Cabrera's motor vehicle was stopped in the second lane from the comer (because he had to make a left tum a few blocks later) and while he observed the Plaintiff- Appellant cross in front of his car and enter the eastbound lane, he observed the Defendant-Respondent's vehicle speed up and he saw the Plaintiff-Appellant "flying up in the air." (R. 218.) Mr. Cabrera observed an SUV, which was making a left tum into the eastbound lane of Montauk Highway, contacted the Plaintiff- Appellant. (R. 219-220.) Mr. Cabrera observed the front driver's side of the SUV contact the Plaintiff-Appellant. (R. 220.) Mr. Cabrera acknowledged having given a statement regarding the happening of the subject accident. (R. 226-229.) Mr. Cabrera acknowledged writing the sentence where he noted that the "female pedestrian was crossing at the lined crosswalk and not in the middle of the street." (R. 229, 237.) Mr. Cabrera's handwritten statement dated January 26, 2012 indicated that he " ... was the very first car in the right hand lane on Montauk Highway headed west. I would say that I was at the light for about 20 seconds, waiting at the red light, when I did see a woman pedestrian crossing the street and she looked into my car and I smiled at her and she 14 continued walking south towards Good Samaritan Hospital. This pedestrian was not with any other person or animal. She was carrying an umbrella and a pocketbook over her shoulder. She was walking and not running across the street. The woman was wearing a long brown or black jacket with brown or black pants. This female pedestrian was crossing at the lined crosswalk and not in the middle of the street." (R. 236- 237.) In support of the underlying motion, the Plaintiff-Appellant submitted an uncertified police report and the corresponding witness statements of the Plaintiff- Appellant, Castiglione, and the Defendant-Respondent, Kruse. (R 240-243.) The statement of Ms. Castiglione stated as follows: "I was standing at the intersection of Keith Lane and Montauk Hwy waiting for the light to change so I could cross over to the south side of Montauk Highway. The light changed so I proceeded to cross and all of a sudden I felt a tire roll over my right leg and my body fell into a car. The woman got out of her car and asked me if I was okay and that she was sorry and that she didn't see me." (R. 241.) The Defendant-Respondent, Kruse's police statement was as follows: "I was at the intersection of Keith Lane and Montauk Highway waiting at a red light, the light changed to green and I had to wait before making a left tum because I was blinked by bright lights of a car making a left from the Good Sam driveway. After the car passed I started to make my left tum and felt an impact. A pedestrian, wearing dark colors had been hit. Conditions were dark, rainy." (R. 242.) 15 C. Order of the Court The Order of the Honorable Peter H. Mayer stated as follows: "In support of their motion, plaintiffs argue that the defendant was negligent and breached her duty by violating Vehicle and Traffic Law (the "VTL") § § 1111 (a )(3) and 1146 in failing to see M. Castiglione, to sound the horn, and to exercise due care to avoid striking her as she crossed Montauk Highway in the unmarked crosswalk. In opposition and in support of their cross motion, defendants argue that plaintiff failed to use due care while crossing Montauk Highway, attempted to cross the road outside of the crosswalk, and failed to yield the right of way to moving vehicles, thus, they should be absolved, as a matter of law, from any liability for the accident. Both sides rely upon, inter alia, the deposition testimony of plaintiff and that of defendant to make out their prima facie case for summary judgment. During her deposition, plaintiff testified and also asserts in her affidavit in support of the motion, that she parked her car on Keith lane and walked to Montauk Highway, but she did not see any cars on Keith Lane. She waited for her signal to tum red for the vehicles traveling on Montauk Highway, looked to her right and left, saw that the vehicles had stopped on Montauk Highway, did not see any cars moving from Keith Lane, and proceeded to walk within the unmarked crosswalk. Plaintiff testified she walked at a moderate pace looking forward, cross the westbound lane on Montauk Highway without incident, but as she was approximately halfway into the eastbound lane, she felt the front driver's side tire of a car roll over her right foot and the side mirror hit under the her [sic] arm, breast and shoulder. Plaintiff asserts that she did not hear a horn blow or brakes screeching, and did not see the car prior to impact. 16 Defendant testified that she was driving on Keith Lane headed south, and intended to make a left tum at its intersection with Montauk Highway to proceed east. She testified that Keith Lane has two lanes of travel, one for each direction and ends at Montauk Highway, but slightly to the east is the driveway for Good Samaritan Hospital. Defendant testified that as she approached the subject intersection, the traffic light was red, she stopped her vehicle and waited with her left tum signal on. As she waited, she did not see any pedestrians. When the light turned green in her favor, there were vehicles stopped to her left and to her right on Montauk Highway, and a car exiting the driveway of Good Samaritan Hospital which turned left in front of her car and proceeded west. Defendant testified she then proceeded to tum onto Montauk Highway, traveling about 5-6 miles per hour when she felt a severe impact to her car. She did not see what caused the impact, and did not realize that a pedestrian was involved until after she pulled over. Although there was nothing obstructing her view, defendant testified she did not see plaintiff walking across Montauk Highway. Defendant testified that when the police arrived, she reported that a pedestrian had hit her car. However, in the certified police report submitted by the plaintiffs, defendant provided the following written statement at the scene of the accident: I was at the intersection of Keith Lane and Montauk Highway waiting at a red light. The light changed to green and I had to wait before making a left tum because I was blinded by bright lights of a car making a left from the Good Sam driveway. After the car passed I started to make my left tum and felt an impact. A pedestrian, wearing dark colors 17 had been hit. Conditions were dark, rainy. An eyewitness to the accident, David Cabrera, testified pursuant to a subpoena and voluntarily provided a sworn statement dated January 26, 2012. Cabrera states that he was the first car stopped at the red light in the westbound lane of Montauk Highway. He observed a pedestrian at the comer and saw her look in all directions before she crossed the street. Cabrera testified that when the light was green in the pedestrian's favor, she crossed directly in front of his vehicle, they made eye contact, and he saw her pause to ensure the car in the next lane had stopped. Cabrera states that as the pedestrian was crossing the eastbound lane of Montauk Highway, walking at a good pace, he saw an SUV driving south on Keith Lane, tum east onto Montauk Highway and hit the pedestrian. According to Cabrera, the SUV was making the left tum at about 20-22 miles per hour, and after it hit the pedestrian causing her to fall to the pavement, the SUV kept going and rolled over the pedestrian's left before pulling over to the side of the road. Cabrera states he parked his car and ran over to the pedestrian while yelling at the female driver, "what, you didn't see her" and also "you made the tum too damn fast." Cabrera writes that the female driver replied "I didn't see her, I didn't see her." Questioning of Cabrera during his deposition elicited the same testimony. Since he had to go to work Cabrera provided the pedestrian with his contact information, and left before the police arrived. The pedestrian, he later found out, was M. Castiglione. Pursuant to 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." Defendant also has the "common-law duty to see that which [ s ]he should have seen [as a driver] through the proper use of h[er] senses" (Barbieri v. Vokoun, 72 AD 18 3d 853, 856, 900 NYS 2d 315 [2d Dept. 201 OJ). VTL § 1111 (a )(3) provides, in pertinent part, that "pedestrians facing any steady green signal .... may proceed across the roadway within any marked or unmarked crosswalk." VTL§ 110 "recognizes that a crosswalk at an intersection need not be delineated by lines or other markings on the road's surface" (Kochloffel v. Giordano, 99 AD 2d 798, 472 NYS 2d 132 [2d Dept. 1984]). Based on the deposition testimony submitted, plaintiffs established their prima facie entitlement to summary judgment on the issue of liability. Plaintiffs testimony demonstrates that she entered the unmarked crosswalk after waiting for the green light in her favor, and exercised reasonable care while walking across Montauk Highway. Defendant had a statutory duty to use due care to avoid colliding with plaintiff, as well as a common-law duty to see that which she should have seen through the proper use of her senses (see VTL §1146), as well as a common-law duty to see that which she should have seen through the proper use of her senses (Barbieri v. Vokoun, 72 AD 3d 853, 856, 900 NYS 2d 315 [2d Dept. 2010], citing see Domanova v. State of New York, 41 AD 3d 633, 634 [2007]; Larsen v. Spano, 35 AD 3d 820, 822 [2006]). Defendant breached this duty as she admittedly did not see plaintiff walking across Montauk Highway. In addition, Cabrera's statement and testimony, together with the defendant's written statement are sufficient to demonstrate, prima facie, defendant's violation of 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"]). In opposition, it is argued that based upon the testimony of the parties, plaintiff was the sole proximate cause of the accident because she failed to use the care of an ordinary prudent person when crossing Montauk Highway, a heavily trafficked road, in an unmarked 19 crosswalk. The argument that plaintiff was the sole proximate cause is belied by the above-mentioned testimony and written eyewitness statement. Nevertheless, "[t]he question of whether a person was within an unmarked crosswalk at the time of an accident is a factual matter for jury resolution" (Olson v. Dougherty, 128 AD 2d 920, 921, 512NYS 2d 730 [3d Dept. 1987]). Therefore, both motions are denied. Accordingly, the motion by plaintiffs for summary judgment in their favor on the issue of liability is denied, and the cross motion by defendants for summary judgment dismissing the complaint is denied." Following the issuance of this Order, the Plaintiff-Appellant filed a Notice of Appeal and the instant appeal ensued. 20 ARGUMENT I. THE PLAINTIFFS-APPELLANTS DID NOT ESTABLISH THEIR PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW. This action arose as the result of a pedestrian knockdown that occurred on October 19, 2011, at approximately 6: 40 a.m., in moderate to pouring rain, on Montauk Highway, near its intersection with Keith Lane, Suffolk County, New York. (R. 83-84, 91, 169-170, 174, 179, 211, 213-214.) Prior to the accident, the Plaintiff-Appellant parked her vehicle on Keith Lane and intended on crossing Montauk Highway to get to work at Good Samaritan Hospital. (R. 96.) A. Contrary to the Plaintiffs-Appellants' assertions, there is a question of fact as to whether or not the Plaintiff-Appellant was crossing at an "unmarked" crosswalk or a place "other than a crosswalk" at the time of the subject accident. The Plaintiff-Appellant admitted that she did not intend to cross on the side of Keith Lane that had a marked pedestrian crosswalk because it was out of her way. (R. 96.) The Plaintiff-Appellant and non-party witness's testimony raise issues of fact as to whether or not the Plaintiff-Appellant was located on the comer of Montauk Highway and Keith A venue, or if she was standing closer to the westbound traffic stop line for the subject intersection, which is not located at the comer. As such, the Court must determine if the Plaintiff-Appellant was crossing at an "unmarked" crosswalk, or at a location that is deemed "other than a 21 crosswalk." See Vehicle and Traffic Law §110, §1152(a). In Lopez v. Beltre, 59 AD 3d 683 (2d Dept. 2009) this Court held: "On a motion for summary judgment, the court's function is to determine whether material factual issues exist, not to resolve such issues (see Sillman v. Twentieth Century- F ox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387; Baker v. D.J. Stapleton, Inc., 43 A.D.3d 839, 841 N.Y.S.2d 382). A motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Scott v. Long Is. Power Auth., 294 A.D.2d 348, 741 N.Y.S.2d 708; see Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366, 489 N.Y.S.2d 580). The Supreme Court, in effect, denied, as academic, that branch of the plaintiffs' cross motion which was to dismiss the Village's affirmative defense of comparative negligence. On the merits, the denial was proper, as the record discloses conflicting evidence as to whether. at the time of the collision. the infant plaintiff was within the crosswalk. with the right-of-way, or 20 feet south of it (see Vehicle and Traffic Law § l 152[a]; Hopkins v. Haber, 39 A.D.3d 471, 835 N.Y.S.2d 233)." (Emphasis supplied.) See also, Hopkins v. Haber, 39 AD 3d 471 (2d Dept. 2007). In support of the Plaintiff-Appellant's Notice of Motion seeking Summary Judgment on the issue of liability, the Plaintiff-Appellant submitted the deposition transcripts of the Plaintiff-Appellant, the Defendant-Respondent, Kruse, and the non-party witness, Mr. Cabrera. The Plaintiff-Appellant's submission of these 22 deposition transcripts failed to eliminate all triable issues of (act, and further demonstrated the need for a jury to determine the credibility of the parties. See Gause v. Martinez, 91AD3d 595 (2d Dept. 2012). The Plaintiff-Appellant's description of her location while waiting to cross the street and prior to entering her roadway is contradictory and insufficient to establish that she was crossing within an "unmarked" crosswalk as defined by Vehicle and Traffic Law §llO(a). It is well settled that issues of credibility must be determined by a trier of fact. See Brown v. Kass, 91Ad3d 894 (2d Dept. 2012); Ferrante v. American Lung Assn., 90 NY 2d 623 (1997). Vehicle and Traffic Law § 110( a) defines an unmarked crosswalk as follows: "(a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway between the curbs or, in the absence of curbs, between the edges of the traversable roadway." Vehicle and Traffic Law § 120( a) defines an intersection as: "(a) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict." The Plaintiff-Appellant described herself prior to entering the roadway as standing on the northeast corner of Keith Avenue. (R. 97, 156, 158.) However, 23 when describing the location where the impact occurred (and utilizing the scene photographs) the Plaintiff-Appellant's testimony establishes that she was not in fact at the corner but actually located closer to the white stop line for westbound traffic which was set back from the comer of Keith A venue and Montauk Highway. (R. 110-111, 115-116.) This testimony raises questions with regards to the Plaintiff-Appellant's credibility and further, the location where the Plaintiff- Appellant was when she began to enter the roadway. Therefore, the first triable issue of fact for a jury, is to determine whether or not the Plaintiff-Appellant was crossing within an "unmarked" crosswalk. See Lopez v. Beltre, supra; Hopkins v. Haber, supra. Finally, even assuming, arguendo, that the Court were find that the plaintiff had begun crossing at the comer of Keith A venue and Montauk Highway and wound up near further east by the white stop line for westbound traffic, it follows that she would have been crossing on a diagonal which would raise issues with regards to her negligence. See Moskowitz v. Israel, 209 AD 2d 676(2d Dept. 1994); Campbell v. Crimi, 267 AD 2d 343 (2d Dept. 1999) (although the defendant was negligent under the broad duties imposed on a driver, the injured plaintiffs actions were the sole proximate cause of his injuries). A review of the subject comer in the photographs marked as Defendant's Exhibits "A" and "D" reveals that the northeast comer of Keith A venue would not lead the Plaintiff-Appellant onto another sidewalk or comer, but would actually 24 lead her into the driveway, entrance, of Good Samaritan Hospital. (R. 87, 156, 158.) Therefore, it would follow that if the Plaintiff-Appellant were crossing at the location she would not be crossing within an "unmarked" crosswalk as defined by Vehicle and Traffic Law § 110, as she would be crossing not in between the curbs of the intersection but from one curb into a driveway. Consequently, it follows that the Defendant-Respondent, would have no reason to have expected the Plaintiff- Appellant to have been crossing at that location, especially since the Plaintiff- Appellant was not readily observable at the corner. Moreover, if it is determined that the Plaintiff-Appellant was crossing at the comer, at a location that is not determined an "unmarked" crosswalk, it follows that the Plaintiff-Appellant would have been bound by Vehicle and Traffic Law § 1152(a). See Parrinello v. Davis, 2 AD 3d 610 (2d Dept. 2003), which held: "There is an issue of fact as to whether. bv virtue of his "crossing a roadway at [al point other than within a marked crosswalk or within an unmarked crosswalk at an intersection" (Vehicle and Traffic Law § 1152[a]; see also Vehicle and Traffic § llO[a],[b] ), the injured plaintiff was negligent in a manner that contributed to the occurrence of the accident (see Dragunova v. Dondero, 305 A.D.2d 449, 758 N.Y.S.2d 819; Ruocco v. Mulhall, 281 A.D.2d 406, 721 N.Y.S.2d 286; Gamer v. Fox, 265 A.D.2d 525, 696 N.Y.S.2d 868; Shachnow v. Myers, 229 A.D.2d 432, 645 N.Y.S.2d 97; Rodriguez v. Robert, 47 A.D.2d 548, 363 N.Y.S.2d 94; Hogeboom v. Protts, 30 A.D.2d 618, 290 N.Y.S.2d 437). The existence of this 25 issue of fact precludes the grant of summary judgment on the issue of liability in favor of the plaintiffs (see e.g. Abramov v. Campbell, 303 A.D.2d 697, 757 N.Y.S.2d 100; Bodner v. Greenwald, 296 A.D.2d 564, 745 N.Y.S.2d 711; King v. Washburn, 273 A.D.2d 725, 710 N.Y.S.2d 185). (Emphasis supplied.) See Pareja v. Brown, 18 AD 3d 626 (2d Dept. 2005). Furthermore, a review of the photographs along with the Plaintiff- Appellant's testimony that the contact occurred near the white line on the left side of Defendant's Exhibit "E", would establish that the Plaintiff-Appellant did not in fact wait at the corner of Keith Avenue and Montauk Highway, but was actually further left of the comer, closer to the white stop line located in Exhibits "A" and "D". (R. 110-11, 115-116, 156, 158, 160.) The Plaintiff-Appellant's location on the sidewalk prior to entering the roadway is crucial in the determination of the parties' negligence. If the Court determines that based upon the Plaintiff-Appellant's deposition testimony that she was closer to the white stop line for vehicles traveling westbound on Montauk Highway (which is in accordance with the non-party witness's testimony), it follows that there are questions of fact as to whether or not the Plaintiff-Appellant, dressed in dark clothing, with an umbrella, was readily observable to Ms. Kruse, while she was stopped the traffic light on Keith Avenue. The Plaintiff-Appellant's 26 significant distance from the comer of Keith A venue and Montauk Highway raises a triable issue of act as to whether or not the Plaintiff-Appellant was visible to Ms. Kruse prior to the accident occurring, and as such, raises triable issues of fact as to whether or not Ms. Kruse failed to see all that could be seen. If the Plaintiff- Appellant was in such a location that she was not readily observable to Ms. Kruse due to the moderate/pouring rain, and the Plaintiff-Appellant's dark clothing it follows that Ms. Kruse would not have been negligent. See, Rosa v. Scheiber, 89 AD 3d 827 (2d Dept. 2011), wherein this Court held: "The plaintiffs' contention that the evidence demonstrated that the driver should have avoided the impact because he should have seen the injured plaintiff when he was 10 to 15 feet away is without merit (see Miller v. Sisters of Order of St. Dominic, 262 AD 2d 373, 374, 691 NYS 2d 168). Furthermore, under the circumstances of this case, the injured plaintiffs estimate that the driver was traveling at "[m]aybe 30 miles an hour" was speculative (see Batts v. Page, 51 AD 3d 833, 858 NYS 2d 748; Meliarenne v. Prisco, 9 AD 3d 353, 780 NYS 2d 30)." In this matter, the Plaintiff and non-party witness's deposition testimony, coupled with the photographs of the accident location fails to establish that the Plaintiff-Appellant was within an "unmarked" crosswalk. Rather the deposition testimony and the photographs raise issues of fact as to the Plaintiff-Appellant's location. If the Court is to find that the Plaintiff-Appellant was located at the 27 comer of Keith Lane and Montauk Highway, then the Plaintiff-Appellant was crossing at a location where there was not an "unmarked" crosswalk because the Plaintiff-Appellant would have been crossing from a comer into the driveway of Good Samaritan Hospital. (R. 156-160.) Conversely, if the Plaintiff-Appellant was crossing near the stop line for westbound traffic on Montauk Highway, she would not have been at the comer of the two intersection, and therefore, would not have been at the intersection and therefore not within the crosswalk, and further not crossing in a location where she would have been readily visible to Ms. Kruse who was making a left tum from the intersection of Montauk Highway and Keith Lane. Consequently, the issue of whether or not the Plaintiff-Appellant was within an unmarked crosswalk as defined by Vehicle and Traffic Law § 110, is a question for a jury to determine. See Kochloffel v. Giordano, 99 AD 2d 798 (2d Dept. 1984); Alli v. Lucas, 72 AD 3d 994 (2d Dept. 2010). B. There is a question of fact as to whether or not the Plaintiff- Appellant maintained a proper look-out while crossing the street, and therefore free from comparative negligence. Prior to the subject accident and leaving the sidewalk the Plaintiff-Appellant looked right and left, but did not observe any vehicles. (R. 106-107.) After having left the sidewalk, Plaintiff-Appellant did not look right or left again to ensure her safety in crossing the eastbound side of Montauk Highway, rather she testified that she was only looking straight. (R. 106-107.) While crossing the street, but before 28 the accident occurred, the Plaintiff-Appellant was walking at a moderate pace and had her open umbrella in her right hand, which, would have been the side where the Kruse vehicle was approaching. (R. 105.) The Plaintiff-Appellant admitted she never saw the vehicle involved in the contact prior to the accident. (R. 104, 109.) However, it must be noted that the Plaintiff-Appellant admitted that the first contact with her body was when front driver's side wheel of the Kruse vehicle rolled over her foot, and then the side view mirror contacted the Plaintiff- Appellant's right arm, breast, and right shoulder. (R. 109, 113.) The Plaintiff-Appellant's testimony raises questions of whether or not she utilized her senses to protect herself from danger, in this matter, a vehicle turning left. See Thoma v. Ronai, 189 AD 2d 635 (1st Dept. 1993). The location of the accident (the eastbound lane) and the area on the Plaintiff-Appellant's body is key to this determination because the Plaintiff-Appellant was not struck by the front bumper of the Kruse vehicle but rather, the Plaintiff-Appellant who was walking perpendicular to the Kruse vehicle's direction of travel placed her foot in the path of the Kruse vehicle. If the Plaintiff-Appellant had checked to her right for on- coming traffic as she began entering the eastbound side of Montauk Highway, she would have been able to stop and allow the Kruse vehicle to pass without incident, as the initial contact only occurred with the Plaintiff-Appellant's right foot. The location of the impact points on the Kruse vehicle and the Plaintiff-Appellant's 29 body demonstrate that the Plaintiff-Appellant through he proper use of her sense (her eyes) she should have observed the Kruse vehicle which was approaching and clearly already in front of her path of travel due to her foot having been run over by the front driver's side tire, which is set back from the front of the vehicle. As was admitted by counsel for the Plaintiff-Appellant, "[a]fter entering the crosswalk, a pedestrian must be mindful of hazardous conditions that are readily observable by the reasonable use of her senses. Popek v. State, 279 AD 2d 622, 622, 719 NYS 2d 708, 708 (2d Dept. 2001)." (Plaintiffs-Appellants' Brief Page 15.) Therefore, there are questions of fact as to the Plaintiff-Appellant's comparative negligence and whether or not Ms. Kruse was the sole proximate cause of the subject accident. In Garrido v Puente, 114 AD 3d 722 (2d Dept. 2014), this Court held: "In support of his motion for summary judgment on the issue of liability, the plaintiff failed to establish. prima facie. that he used due care in crossing the street. and thus. that the defendant's alleged negligent operation of her vehicle was the sole proximate cause of the accident (see Melchiorre v. Dreisch, 95 A.D.3d 845, 846, 942 N.Y.S.2d 892; Day v. MTA Bus Co., 94 A.D.3d 940, 941, 942 N.Y.S.2d 172; Garcia v. El-Zien, 90 A.D.3d 601, 933 N.Y.S.2d 903; Yuen Lum v. Wallace, 70 A.D.3d 1013, 897 N.Y.S.2d 454). The affidavit submitted by the plaintiff in support of his motion failed to provide any details as to whether the traffic light controlling the intersection was in his favor, whether there was a pedestrian control signal at the subject intersection, which direction he looked before entering the crosswalk, 30 and whether he looked in either or both directions as he crossed the street. Since the plaintiff failed to meet his prima facie burden of demonstrating his entitlement to judgment as a matter of law on the issue of liability. the Supreme Court should have denied the plaintiffs motion for summary judgment. regardless of the sufficiency of the defendant's ORposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642)." (Emphasis supplied.) See also, Melchiorre v. Dreisch, 95 AD 3d 845 (2d Dept. 2012); Lum v. Wallace, 70 AD 3d 1013 (2d Dept. 2011); Roman v. Al Limousine, Inc., 76 AD 3d 552 (2d Dept. 2010). C. There are issues regarding the credibility of the witnesses which requires a determination by a jury. Furthermore, there are issues of credibility with regards to the deposition testimony of the non-party witness, Daniel Cabrera, requiring a determination by a jury. Mr. Cabrera's testimony is inconsistent in that he describes more travel lanes that are shown in the pictures of the accident location. (R. 159, 211-212, 218.) Furthermore, he testified that he was stopped for almost 10 seconds prior to the accident and did not observe the plaintiff before she was in front of his vehicle. (R. 214-215.) However, he then amends his testimony to state that the plaintiff was stopped at the coroner for one to two seconds after the traffic light changed, she looked before crossing and then the accident occurred. (R. 215, 217, 233-234.) 31 Mr. Cabrera's inconsistent statements as to when he first observed the Plaintiff- Appellant prior to the accident, and the speed of Ms. Kruse's vehicle raise issues of fact with regards to his credibility. Mr. Cabrera also alleged that Ms. Kruse's vehicle was traveling at approximately 20 miles per hour at the time of the impact, however Ms. Kruse testified that she was traveling at approximately 5-6 miles per hour, and the Plaintiff-Appellant testified that Ms. Kruse was able to stop her vehicle less than five feet after the impact point. (R. 11 7, 193, 220.) As such, there is a question as to the speed Ms. Kruse's vehicle was traveling at the time of the impact, requiring a jury's determination. Finally, Mr. Cabrera asserts that the when the subject impact occurred the Plaintiff-Appellant went "flying up in the air". (R. 218.) However, the Plaintiff- Appellant described the accident occurring when the Defendant-Respondent's vehicle rolled over. her foot, causing her to be struck on her right arm, right breast and right shoulder by the driver's side mirror of the Defendant-Respondent's Vehicle. (R. 218, 113.) There was never any mention by the Plaintiff-Appellant that she was ever thrown into the air. Therefore, Mr. Cabrera's version of events does not fit within the description of the accident as given by both the Plaintiff- Appellant and Ms. Kruse, thereby raising triable issues of fact with regards to his testimony and the credibility of his testimony. 32 In Brown v. Kass, supra, this Court held: ""It is not the court's function on a motion (or summary judgment to assess credibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). " 'On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine,' " and " ' [a ]ny conflict in the testimony or evidence presented merely raise[ s] an issue of fact' " (Pryor & Mandel up, LLP v Sabbeth, 82 AD3d 731, 732 [2011], quoting 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449 [2006]). Summary judgment is inappropriate where triable issues of.fact or credibility are raised that require a trial (see Zuckerman v City of New York, 49 NY2d 557 [1980])." (Emphasis supplied.) As such, the Plaintiff-Appellant's submission of Mr. Cabrera's deposition testimony transcript created triable issues of fact warranting the denial of the motion for summary judgment. Based upon the foregoing it is respectfully asserted that the Plaintiffs- Appellants failed to establish their prima facie entitlement to summary judgment as a matter of law. It is well settled that regardless of the_ sufficiency of the opposition papers, if a party does not meet the prima facie showing necessary then the motion must be denied. See Mackensie v. City of New York, 81 AD 3d 699 (2nd Dept. 2011 ), which held: "Since the plaintiff failed to meet her burden, we need not review the sufficiency of the defendant's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS 2d 316 [1985]). Accordingly, 33 the Supreme Court properly denied the plaintiffs cross motion for summary judgment on the issue of liability." See also Rodgers v. Duffy, 87 AD 3d 1126; Garcia v. El-Zien, 90 AD 3d 601 (2d Dept. 2011). Consequently, the Court erred in finding that the Plaintiffs-Appellants met the initial prima facie burden, but correctly denied the Plaintiffs-Appellants' motion. II. ASSUMING, ARGUENDO, THAT THE PLAINTIFFS-APPELLANTS MET THE INITIAL PRIMA FACIE BURDEN, THE DEFENDANTS- RESPONDENTS RAISED TRIABLE ISSUES OF FACT. Assuming, arguendo, that the Court were to find that the Plaintiffs- Appellants, met their initial prima facie burden, the Defendants-Respondents, Kruse, raised triable issues of fact warranting the denial of the Plaintiffs- Appellants' motion. It is well settled that there can be more than one proximate cause of an accident. See Cox v. Nunez, 23 AD 3d 427; Lopez v. Reyes-Flores, 52 AD 3d 785. In the Court below, the Defendants-Respondents, Kruse, argued to the Court that there were triable issues of fact with regards to the issue of the Plaintiff- Appellant's comparative negligence, and a determination as to whether or not the Plaintiff-Appellant was a proximate cause in her own injuries. (R. 264-268, 256- 258.) As was stated above, the Plaintiff-Appellant's testimony establishes that she failed to maintain a reasonable look out while crossing the roadway, and therefore, 34 failed to establish that she utilized her senses to protect herself from danger, in this matter, a vehicle turning left. (R. 104-107, 109, 113.) See Thoma v. Ronai, supra. Once again, it is noted that the location of the accident (the eastbound lane) and the location of the Plaintiff-Appellant's body where the first impact occurred, is key to the determination of right of way and the question that "if the plaintiff had kept a proper look out, would she have been able to avoid the accident?". It is well settled that a party with the right-of-way still has the duty to avoid an impact if possible. See Yelder v. Walters, 64 AD 3d 762 (2d Dept. 2009). Since the Plaintiff- Appellant was not struck by the front bumper of the Defendant-Respondent's vehicle but rather, the Plaintiff-Appellant. who was walking perpendicular to Ms. Kruse's direction of travel, placed her foot in the path of the Kruse vehicle, and her right foot was run over. It follows, that there is a question of fact as to whether or not the Plaintiff-Appellant could have avoided the accident because if the Plaintiff- Appellant had checked to her right for on-coming traffic as she began entering the eastbound side of Montauk Highway, she would have been able to stop and allow the Kruse vehicle to pass without incident. Moreover, the location of the impact points on the Kruse vehicle and the Plaintiff-Appellant's body demonstrate that the Plaintiff-Appellant through the proper use of her sense (her eyes) she should have observed the Kruse vehicle which was approaching and clearly already in front of her path of travel due to her 35 foot having been run over by the front driver's side tire, which is set back from the front of the vehicle. It must be noted again that counsel for the Plaintiff-Appellant admitted that "[a]fter entering the crosswalk, a pedestrian must be mindful of hazardous conditions that are readily observable by the reasonable use of her senses. Popek v. State, 279 AD 2d 622, 622, 719 NYS 2d 708, 708 (2d Dept. 2001)." (Plaintiffs-Appellants' Brief Page 15.) In Schmidt v. S.M. Flickinger Co., 88 Ad 2d 1068 (3rd Dept. 1982), that Court held: "The right of way is not a right to self-inflicted mayhem for which the defendant can be held liable, and one cannot, to the exclusion of everyone and everything around him, rely solely upon his right of way ( Counihan v Werbelovsky's Sons, 5 AD2d 80, 83)." In Melchiorre v. Dreisch, 95 AD 3d 845 (2d Dept. 2012) the Court held: "In support of her motion for summary judgment on the issue of liability, the plaintiff (ailed to establish. prima facie. that she used due care in crossing the street and, thus. that the defendant's alleged negligent operation of his vehicle was the sole proximate cause of the accident (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690; Cohn v. Khan, 89 A.D.3d 1052, 1053, 933 N.Y.S.2d 403; Roman v. Al Limousine, Inc., 76 A.D.3d 552, 907 N.Y.S.2d 251; Yuen Lum v. Wallace, 70 A.D.3d 1013, 1014, 897 N.Y.S.2d 454). The plaintiffs failure to meet her prima facie burden required denial of her motion without regard to the sufficiency of the defendant's opposition papers ( see Yuen Lum v. 36 Wallace, 70 A.D.3d at 1014, 897 N.Y.S.2d 454)." (Emphasis supplied.) Therefore, there are questions of fact as to the Plaintiff-Appellant's comparative negligence and whether or not the Defendant-Respondent was the sole proximate cause of the subject accident. See, Garrido v Puente, supra. As such, the Kruses raised a triable issue of fact with regards to the issue of comparative negligence and proximate cause. Furthermore, contrary to the assertions of Plaintiffs-Appellants' counsel, Ms. Kruse was not blinded as she was making her tum, but rather stated that she observed the vehicle turning left form Good Samaritan Hospital's parking lot, she was blinded by the lights, waited, and then proceeded. (R. 242.) As such, she waited for the blinding lights to pass by her, and only then, after her vision had cleared did she begin her slow tum at a reasonable rate of speed for the lighting and weather conditions. The low rate of speed of the Ms. Kruse's vehicle is corroborated by the Plaintiff-Appellant's testimony that Ms. Kruse's vehicle came to a full stop within five feet of the accident location. (R. 117.) Therefore, Ms. Kruse statement does not establish that she was blinded or that she was the sole proximate cause of the subject. At most, it simply raises a triable issue of fact warranting a determination by a jury. 37 It is respectfully asserted that based upon the foregoing, the Defendants- Respondents, Kruse, established that there are triable issues of fact regarding the issues regarding whether or not the Plaintiff-Appellant was located within an "unmarked" crosswalk, or a "place other" than a crosswalk, and the issues of comparative negligence, credibility and proximate cause, all of which require a determination by a trier of fact. As such, the lower court correctly denied the Plaintiffs-Appellants' motion for summary judgment and determined that there are "factual matter[s] for jury resolution." (R. 6.) 38 CONCLUSION For the reasons set forth herein, the underlying Order of the Honorable Peter H. Mayer, J.S.C., 'dated July 11, 2014, which denied· the Plaintiffs-Appellants, Castiglione's, Motion for Summary Judgment on the issue of liability and the Defendants-Appellants', Kruse's, Cross-Motion for Summary Judgment on the issue of liability, must be affirmed, and the entire matter must be placed before a jury for a full and fair _trial on the issues of fact and law. Dated: Westbury, New York April 10, 2015 tfully submitted, o & Scahill, P .. . errucc1 ttorney for efendant-Respondent 900 Merchants Concourse - Suite 310 Westbury, New York 11590 (516) 294-5200 39 CERTIFICATE OF COMPLIANCE WITH N.Y. COUR'J;'RULES § 670.10.3(f) Andrea E. Ferrucci, an attorney duly admitted to practice law in the courts of. the State of New York, affirms· that the within Respondent'.s Brief was prepared on a computer with Times New Roman 14-point font, double-spaced, and the word count is approximately 8,604. Signed in accordance with N.Y. .R § 130-1.la(a) Francis J. Scahill 40