Marie Castiglione, et al., Respondents,v.Robert Kruse, et al., Appellants.BriefN.Y.May 3, 2016WP ICC I AN 0 ( SCAHILL PC Christopher Amato Richard B. Brown++ Robert B. Brown Peter J. Caso++ Thomas R Craven, Jr.+ Isaac M. Dana John R. Danzi Jennifer L. De Venuti Paul Duer Andrea E. Ferrucci Robert A. Fishkin Eric C. Flores Lisa Frank Albert J. Galatan+ Anthony E. Graziani Howard Greenwald Gilbert J. Hardy Mary V. Harkins Timothy F.X. Jones Stephen D. Jordan+++ Tara M. Kennedy ++ Robert Lally Diana LaPadula*++ Charles S. Mailloux John A. Milano* Justice, Supreme Court, Ret A.Dnmarie C. Montano Matthew J. Peluso John F. Picciano Deborah S. Reed Lester C. Rodriques Francis J. Scahill David J. Tetlak Tarin Tomlinson Keri A. Wehrheim Mark S. Zemcik *OF COUNSEL ALSO AD:MITTED +Massachusetts ++New Jetscy · +++Connecticut Court of Appeals State of New York 20 Eagle Street, Albany, New York 12207-1095 Attn: John P. Asiello, Chief Clerk January 25, 2016 And Legal Counsel to the Court Of Appeals, State of New York Dear Mr. Asiello: Re: Castiglione v. Kruse APL-2015-00325 This letter is submitted on behalf of the Defendants-Appellants, Robert Kruse and Karen Kruse (hereinafter "Kruse''), pursuant to this Court's January 5, 2016 correspondence in the above referenced matter, directing that this matter be perfected through the Alternative Procedure, pursuant to Rule 500.11. The Defendants-Appellants do not object to the Court's consideration of this appeal pursuant to Rule 500.11. Defendants-Appellants, Kruse, hereby expressly incorporate by reference, the entire contents of their Respondents' Brief suqmitted to the Appellate Division, Second Department, as well as the arguments contained within the lower court motion papers that are contained within the Record on Appeal which was before the Appellate Division, Second Department. (See Rule 500.ll(f).) The Defendants-Appellants enclose herein the items required by Rule 500.11(c) (Record on Appeal, Appellant's Brief, Respondents' Brief, Reply Brief), except that, as natural individuals, Robert Kruse and Karen Kruse, are not required to file a disclosure statement pursuant to Rule 500.11 (f). Attached hereto as Exhibit "A," is the Appellate Division, Second Department's July 29, 2015 Decision and Order. The Appellate Division, Second Department's Decision and Order dated December 3, 2015, which 516.294.5200 f 516.873.6229 900 Merchants Concourse, Suite 310, Westbury, NY 11590 Send all correspondence 14 Church Street, Suite l 01 Ossining, NY I 0562 122 East 42nd Street, Suite 803 New York, NY 10168 osnvlaw.com provided this Court jurisdiction, is annexed hereto and made a part hereof as Exhibit "B." (See Rule 500.ll(c)). As will be discussed below, the Decision and Order of the Appellate Division, Second Department, dated and entered on July 29, 2015, should be reversed and the opinions and determinations set forth in the dissenting opinion of Justice Dillon should be adopted and incorporated as the Jaw of the case. PRELIMINARY STATEMENT This action involves a pedestrian/automobile collision which occurred on October 19, 2011, at approximately 6:40 a.m., at the intersection of Montauk Highway and Keith Lane, an irregular intersection, while it was still dark out and raining. In the Appellate Division, the majority found that the holding in Thoma v. Ronai, 82 NY 2d 635, was factually distinguishable from the instant matter and as such, not binding authority. As such, the majority concluded that the Plaintiff-Respondent was entitled to Summary Judgment on the issue of Liability as she did not have a duty to maintain a proper and continuing lookout to ensure her safety as she crossed a four-lane highway, after having looked left and right from the curb and entered the roadway. It is respectfully submitted, the Appellate Division, Second Department misapprehended the controlling case law of this Court, and misapplied the case law based upon the majority's misinterpretation of: (1) the configuration of the subject intersection; (2) the location of the Kruse vehicle; and, (3) the location where the Plaintiff-Respondent was attempting to cross the irregular intersection. The majority's factual misinterpretations fed to a factual distinction that resulted in the misapplication of the controlling case law. The location of the Plaintiff-Respondent at the time she was attempting to cross the subject intersection is critical to the determination of this matter, as it would shift the burdens of the parties. Specifically, if the Plaintiff-Respondent was crossing at the corner of the intersection, next to the roadway where the Defendant-Appellant, Kruse, . was coming from, the Plaintiff-Respondent would have been in an "unmarked" cross- walk and, therefore, Defendant-Appellant, Kruse's, duties would be controlled by Vehicle and Traffic Law §1151(a). However, if Plaintiff-Respondent was approximately ten to fifteen feet further east, next to the stop line for westbound traffic traveling on Montauk Highway at the subject intersection, near the non-party witness, she would then not have been in an "unmarked" crosswalk, but crossing outside of a crosswalk, and, therefore, the Plaintiff-Respondent's duties would be controlled by Vehicle and Traffic Law §1152(a). Consequently, the determination as to where the Plaintiff- 2 PICCIANO PC SCAHILL Respondent entered the roadway would be controlling on which party had the right-of- way and which party had the burden to yield, which would be determinative on the issue of negligence. Moreover, as was noted by Justice Dillon, the most important aspect in this matter is whether or not the Appellate Division, Second Department, correctly interpreted the duties of a pedestrian when crossing a roadway, and where the duty to maintain a proper look out begins and ends. As was pointed out by Justice Dillon the majority in this matter: "misapplied controlling case law such as Thoma, [82 NY 2d 635], Yi Min Feng, [71 AD 3d 879], Lopez, [67 AD 3d 558] by making distinctions that those cases did not involve vehicles approaching from the rear. The majority's position in this regard is faulty for two reasons. First the premise that the defendants' vehicle somehow approached from behind her is refuted bv the uncontested configuration of the intersection, regardless of its point of initial origin. Second, the majority misconstrues Thoma, Yi Ming Feng, and Lopez, as those cases were not determined bv the direction· of the cars involved but bv the plaintiffs' fa!'lures to be aware of their surroundings on trafficked roadwavs." (See Exhibit "A"; emphasis supplied.) Finally, as was noted by Justice Dillon, the majority's misinterpretation of the controlling case law regarding pedestrians created a "new law" which in essence holds that "as long as a pedestrian looks both ways and steps off a curb with the traffic light in his or her favor, the pedestrian is relieved of any further duty of care while crossing multiple lanes of traffic on a dark and rainy morning, without need to ever look again left or right, and be oblivious to one's broader surroundings." (See Exhibit "A.") These issues will be discussed at length below. QUESTIONS PRESENTED 1. Is the starting position of the offending vehicle determinative on the duties applied to the Plaintiff-Respondent to ensure her own safety while crossing a roadway? 3 PICCIANO PC SCAHILL The Appellate Division, Second Department majority answered this question in the affirmative. 2. Did the Appellate Division, Second Department, misinterpret the holding in Thoma, and the duties of a pedestrian, when the Appellate Division, Second Department found that the plaintiff had no duty to continue checking for on- coming vehicles after having left the safety of the curb? The Appellate Division, Second Department dissent answered this question in the affirmative. STATEMENT OF FACTS (Respondent Brief pages 5-15.) 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, 169-1701). At the time of the subject accident it was moderately raining and still dark out. (R. 91, 174-175, 213-214.) Montauk Highway is a two-way roadway, with one lane in either direction (east and west) and there was a dedicated left turn lane on the westbound side of Montauk Highway, for traffic turning into the hospital parking lot. (R. 99, 171-172.) Prior to the accident, the Plaintiff-Respondent stopped at the northeast corner of Keith Lane and Montauk Highway. (R. 96-97.) The Plaintiff-Respondent 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 it's easier for (her] to walk straight across." (R. 96.) When the Plaintiff-Respondent first got to the corner the traffic light for traffic on Keith Lane was red. (R. 97 .) Traffic facing south on Keith Lane would be required to turn either right or left at Montauk Highway. (R. 97.) The Plaintiff-Respondent did not see any vehicles stopped on Keith Lane, while at the corner, because she did not look for any traffic on Keith Lane. (R. 97.) When the traffic light for Keith Lane turned green, the Plaintiff-Respondent began crossing the roadway. (R. 98.) As the Plaintiff-Respondent first began leaving the curb, she did not see any cars moving from Keith Lane. (R. 103.) Prior to leaving the sidewalk, the Plaintiff-Respondent looked right and left, but did not observe any 1 "R" refers to page numbers contained within the Record on Appeal. 4 PICCIANO PC SCAHILL vehicles. (R. 106-107.) From the point the Plaintiff-Respondent left the sidewalk up until the accident occurred she was only looking straight. (R. 106.) Once the Plaintiff- Respondent entered onto Montauk Highway from the curb, she never looked right or left again. (R. 107.) As the Plaintiff-Respondent was crossing the eastbound side of Montauk Highway, she was involved in an accident with a motor vehicle. (R. 104-105.) The Plaintiff-Respondent never saw the vehicle involved in the contact prior to the accident. (R. 104, 109.) The Plaintiff-Respondent did not know where the vehicle came from. (R. 105.) Prior to the accident the Plaintiff-Respondent was walking at a moderate pace still holding her open umbrella. (R. 105.) The Plaintiff-Respondent first became aware of the accident when she felt the contact. (R. 109.) The Plaintiff-Respondent felt the front driver's side tire roll over her right foot, and the driver1s side mirror struck the Plaintiff-Respondent's right arm, breast and shoulder. (R. 113.) At the time of the impact, the Plaintiff-Respondent was looking straight towards the hospital with her umbrella in her right hand, with it 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 stilt moderate. (R. 110.) The Plaintiff-Respondent did 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. 117.) The Defendant-Appellant, 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.) Good Samaritan Hospital's driveway is located on the opposite side of Montauk Highway from Keith Lane, but slightly offset, more to the east. (R. 171.) The intersection of Montauk Highway and Keith Lane is controHed by a traffic light. (R. 172-173.) At the time of the subject accident, it was stiff dark outside and pouring rain. (R. 174.) The street fights were functioning on the date of the accident, but the intersection was not "weJI lit." (R. 175.) Prior to the accident occurring,. Ms. Kruse had been traveling south on Keith Lane and had brought her vehicle to a stop at the subject intersection for a red light. (R. 170, 184-185.) The Jeep depicted in the photograph on page 156 of the record, is demonstrative of the position and location of Ms. Kruse's vehicle while she was stopped at the red light on Keith Lane. (R. 203, 156.) Immediately prior to and at the time of the accident, Ms. Kruse's headlights and windshiefd 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.) 5 PICCIANO PC SCAHILL When the traffic light turned green, 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 turn and then began to proceed into the intersection to make her left turn. (R. 190-191.) Ms. Kruse looked left and right before beginning her turn. (R. 191.) Ms. Kruse observed one vehicle stopped in the left turn lane of westbound traffic, one vehicle stopped in the right through lane of westbound traffic, and one vehicle stopped in 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 turn, and looking forward as she turned, she felt an impact to the driver's side of her vehicle. (R. 192.) At the time Ms. Kruse felt the impact, she was traveling at 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 turn 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.) The non-party witness, David Cabrera, testified that he was operating a 1999 Saturn at approximately 6:45-7:00 a.m. on Montauk Highway, in front of Good Samaritan Hospital, when he witnessed the subject accident. (R. 211.) 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- Respondent pedestrian when she first crossed in front his vehicle, as she was walking south. (R. 215.) Mr. Cabrera did not see the Plaintiff-Respondent before she began crossing the street. (R. 215.) Mr. Cabrera first took notice of the Plaintiff-Respondent when she looked at him and smiled while she was crossing the street. (R. 215.) At the time, the Plaintiff- Respondent was carrying a bag and an umbrella. (R. 216.) The Plaintiff-Respondent was crossing the roadway at a corner and was walking towards the entrance to the hospital. (R. 216-217.) 6 PICCIANO Pt SCAHILL Although Mr. Cabrera initially testified that he did not see the Plaintiff- Respondent 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-Respondent looked both ways before crossing the street2. (R. 215, 217-218, 233-234.) Mr. Cabrera testified that the traffic light turned red, two to three seconds elapsed, and then the Plaintiff-Respondent began crossing the street. (R. 217.) Mr. Cabrera asserted that the Plaintiff-Respondent looked to make sure the vehicles stopped and then she crossed. (R. 217.) Color photographs depicting the irregular intersection where the subject accident occurred are contained in the Record on Appeal, at pages 156-160. The Plaintiff- Respondent identified the photograph on page 156 as depicting Good Samaritan Hospital, the traffic light and intersection of Keith Lane and Montauk Highway. However, the photograph on page 156 does not show the location of the impact, which the Plaintiff-Respondent indicated was more left than what the photograph showed. (R. 111.) The Plaintiff-Respondent identified the photographs on pages 157 and 158 as depicting the intersection of Montauk Highway and Keith Lane. (R. 101.) The photograph on page 158 depicted the crosswalk located at the subject intersection connecting the northwest and southwest corners of Montauk Highway. (R. 101.) The Plaintiff-Respondent indicated that photographs on pages 159 and 160 depicted the location of the accident. (R. 115.) The photograph on page 160 depicted the impact location. (R. 115.) ARGUMENT I. THE CONFIGURATION OF THE INTERSECTION AND THE LOCATION OF THE PLAINTIFF PRIOR TO ENTERING THE ROADWAY IS CRITTCAL TO THE DETERMINATION OF THE DUTIES OF THE PARTIES. The configuration of the subject intersection is irregular. The photographs of the subject intersection depict the irregular nature of this intersection. (R. 156-160.) The testimony of the non-party witness indicates that he was stopped at a "corner." However, a review of the photographs of the subject intersection reveals that the stop line for westbound traffic where the non-party witness was stopped was set back 2 The Non-Party Witness, David Cabrera's, description of Montauk Highway differs from the uniformed description offered by the Plaintiff-Respondent, Defendant-Appellant, and authenticated photographs of the subject location. (R. 99, 171-172, 156-160, 217-218.) 7 PICCIANO PC SCAHILL approximately ten to fifteen feet from the actual corner of the sidewalk, but on the south (eastbound) side of where the non-party witness was stopped, there was a corner on the other sidewalk. As such, when considering the non-party witness's testimony, a determination must be made as to whether or not his description of a "corner" is the actual end of the roadway on the northbound side, or the location where the stop line for westbound traffic on Montauk Highway is located. Based upon the non-party witness's testimony, he observed the Plaintiff- Respondent as she was crossing the roadway when she turned her head and smiled at him. However, based upon the testimony of the Plaintiff-Respondent, Defendant- Appellant, and non-party witness, it was moderately raining at the time of the accident. (R. 91, 174-175, 213-214.) As such, it follows that the non-party witness would not have been able to observe the Plaintiff-Respondent's facial features and a smile unless she was crossing the roadway near the stop line in front of his vehicle, which he may have described as a "corner," but which was approximately ten to fifteen feet from the actual corner of the northbound side. Although the Plaintiff-Respondent's testimony indicates that she stopped at the actual corner of the roadway and waited for the traffic light to change before crossing the roadway, when she utilized the photographs of the scene, and described the location of the impact, it demonstrates that she was not, in fact, at the physical corner when the impact occurred. (R. 110-111, 115-116, 156-160.) The discrepancy in the testimony of the Plaintiff-Respondent and the non-party witness raises an issue as to where the Plaintiff-Respondent was located when she first entered the roadway. If the Plaintiff-Respondent was at the actual corner, as she testified, then Vehicle and Traffic Law § 1151(a) would have controlled the parties' "right-of-way," thereby providing the Plaintiff-Respondent the right-of-way to cross the · roadway and the Defendant-Appellant would have had a duty to yield the right-of-way. However, if the Plaintiff-Respondent was located closer to the non-party witness's motor vehicle, and next to the white stop line, depicted in the photograph of the scene, then the Plaintiff-Respondent would have been ten to fifteen (10-15) feet from the corner of the intersection, which would have placed her outside of a marked or unmarked crosswalk. Therefore, Vehicle and Traffic Law §1152(a) would have controlled, and would have provided the Defendant-Appellant, Kruse, the right-of-way with a duty to yield placed on the Plaintiff-Respondent. Furthermore, if the Plaintiff- Respondent was ten to fifteen (10-15) feet from the corner, it follows that based upon the lighting and weather conditions, the Plaintiff-Respondent would not have been visible to the Defendant-Respondent as she began her left turn onto east bound Montauk Highway. 8 PICCIANO PC SCAHILL In Lopez v. Beltre, 59 AD 3d 683 (2d Dept. 2009), which is similar to the underlying action and record, the Appellate Division, Second Department denied a motion for summary judgment "as the record disclose[d] 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 §1152[a]; Hopkins v. Haber, 39 AD 3d 471, 835 NYS 2d 233). '' See also, Pareja v. Brown, 18 AD 3d 636 (2d Dept. 2005), which held: "Triable issues of fact exists as to whether the plaintiff contributed to the accident by failing to exercise due care in crossing the street at a point other than an intersection or a crosswalk, and whether the defendant contributed to the accident by failing to exercise due care in. operating his vehicle (see Vehicle and Traffic Law §§ 1152[a], 1211 [a]; Parrinello v. Davis, 2 A.D.3d 610, 768 N.Y.S.2d 348; Dragunova v. Dondero, 305 A.D.2d 449, 758 N.Y.S.2d 819; Garner v. Fox, 265 A.D.2d 525, 696 N.Y.S.2d 868)." Consequently, the Court must first determine the location where the Plaintiff- Respondent entered the roadway before the right and duties of the parties can be assigned so that neglJgence can be assessed. This discrepancy, when coupled with the Plaintiff-Respondent's testimony that she never looked for, or observed any traffic stopped on Keith Lane prior to the traffic light turning green, raises issues of fact regarding the Plaintiff-Respondent's comparative negligence. These "issues" are directly on point with this Court's prior holding in Thoma v. Ronai, 82 NY 2d 736 (1993), which held: "Plaintiff's concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care." Therefore, this Court's prior determination in Thoma, supra, when correctly applied to the issues of the underlying matter required the denial of the underlying motion. 9 PICCIANO PC SCAHILL IL THE CONFIGURATION OF THE ROADWAY, AND THE IMPACT POINT ON THE DEFENDANTS-APPELLANTS' VEHICLE BELIES THE COURT'S REASONING WITH REGARDS TO THE LOCATION OF THE DEFENDANTS-APPELLANTS, KRUSE'S, MOTOR VEHICLE AT THE TIME OF IMPACT. The Appellate Division, Second Department majority found that: "[t]he deposition testimony of the injured plaintiff and a nonparty witness established that prior to entering the roadway, the injured plaintiff waited for the traffic light controlling the east-west traffic on Montauk Highway to turn red, then looked to her left and right, and, seeing no cars, started· to walk southbound across Montauk Highway. The testimony further established that the injured plaintiff traversed the westbound left-turn lane, and while in the eastbound lane of Montauk Highway, having almost completed crossing, was struck by the defendants' vehicle, which had turned left from Keith Lane to proceed on east Montauk Highway. Significantlv, this testimonv established that,· prior to the impact, Karen Kruse (hereinafter the defendant driver), started her approach to the point of impact from behind and to the right of the injured· plaintiff, that is, from behind the injured plaintiff's right shoulder and out of her view. The defendant driver conceded in her deposition testimony that she did not see the injured plaintiff prior to impact, despite the fact, established by her own testimony, that the injured plaintiff was generally in front of her prior to the impact. Under these circumstances, the plaintiffs established that the defendant driver was negligent and that the injured plaintiff was free from comparative fault." (Emphasis supplied.) The majority went on to indicate that the cases relied upon by the dissent, some of which were relied upon in your affirmant's underlying papers, were factually different because they all 10 PICCIANO PC SCAHILL "share[d] one important distinguishing fact: the vehicles in all three cases were coming from a direction generally in front of the injured plaintiff before the impact with the injured plaintiff occurred. Here, the defendants' vehicle was coming from a direction which was largely behind the injured plaintiff, and to her right, prior to the impact." It is respectfully asserted that the majority's failure to first determine the Plaintiff-Respondent's location on the sidewalk before she entered the roadway provides a fatal flaw in the majority's rationale. Specifically, if the Plaintiff-Respondent was located at the corner of Keith Lane and Montauk Highway, and not next to the stop line for westbound traffic, then she would have been parallel with the Defendant-Appellant's vehicle which was· the first vehicle stopped at the subject intersection. As such, Defendant-Appellant's vehicle would have been readily visible to the Plaintiff- Respondent when she looked left and right before entering the roadway, and further the Plaintiff-Respondent would have been "on notice" to keep a proper look out for the Defendant-Appellant's vehicle since the Plaintiff-Respondent testified that vehicles on Keith Lane could only turn left or right at the subject intersection. However, if the Plaintiff-Respondent was located closer to the westbound traffic stop line, it follows that the Plaintiff-Respondent would have been approximately ten feet from the subject intersection, but still parallel with the Defendant-Appellant's vehicle. However, since the Plaintiff-Respondent would have been approximately ten feet from the intersection, it follows that in order for the impact to have occurred as the Plaintiff-Respondent described, the Defendant-Appellant's vehicle would have already completed its left turn and been within the east bound lanes of Montauk Highway, coming from the Plaintiff-Respondent's right, when the Plaintiff-Respondent's foot was run over by the front driver's side wheel and she was struck by the driver's side mirror of the Defendant-Appellant's vehicle. Therefore, regardless of which location the Plaintiff-Respondent was prior to exiting the safety of the sidewalk, the facts in this matter are not distinguishable from the cases cited by the dissent. Moreover, the testimony of the Plaintiff-Respondent establishes that the Defendant-Appellant's vehicle as coming from her right side, which · if the Plaintiff-Respondent had continued to check left and right while crossing this roadway, she would have easily observed the Defendant-Appellant's vehicle, which had started out parallel with the Plaintiff-Respondent and then turned left in front of the Plaintiff-Respondent. The fact that the Defendant-Appellant's vehicle was in front of the Plaintiff-Respondent is established through the contact points, as the Plaintiff- Respondent was not struck on the backside of her body by the front of the Defendant- 11 PICCIANO PC SCAHILL Appellant's vehicle, but rather the side of the Kruse vehicle (the front driver's. side wheel and side-view mirror) was involved in this accident with the front of the Plaintiff- Respondent's body (foot, shoulder and breast). As such, it follows that the Defendant- Respondent's vehicle did not come from behind the Plaintiff-Respondent, but rather from the right side, which the Plaintiff-Respondent would have observed had she maintained a proper look out as was required by this Court's holding in Thoma v. Ronai, 82 NY 2d 736 (1993), which held: "Plaintiffs concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care." Therefore, this. Court's prior determination, when correctly applied to the issues of the underlying matter required the denial of the underlying motion. III. ASSUMING, ARGUENDO, THAT THE PLAINTIFF-RESPONDENT MAY HAVE HAD THE RIGHT-OF-WAY, SHE STILL HAD A DUTY TO MAINTAIN A PROPER LOOKOUT WHILE CROSSING THE ROADWAY Quite simply, in this matter the Plaintiff-Respondent failed to eliminate all triable issues of fact with regards to her comparative fault. The Plaintiff-Respondent in this matter admitted that once she left the safety of the sidewalk, she only looked straight ahead; never looking left or right to ensure her safety as she crossed Montauk Highway. (R. 104, 106, 109.) The Plaintiff-Respondent's failure to maintain a proper lookout for her safety, while crossing Montauk Highway in the dark, under an umbrella in the rain, raises triable issues of fact with regards to her comparative negligence. In Garrido v Puente, 114 AD 3d 722 (2d Dept. 2014), the Appellate Division, Second Department 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 12 PICCIANO PC SCAHILL 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 crosswal~ 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 plaintiff's motion for summary judgment regardless of the sufficiencv of the defendant's opposition 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). Moreover, in Roman v. Al Limousine, Inc., 76 AD 3d 552 (2d Dept. 201,0), the Appellate Division, Second Department noted that it would be following the holding in Thoma v. Ronai, 82 NY 2d 736 [1993]), as it was directly on point, wherein a plaintiff pedestrian failed to establish his freedom from negligence. The holding and reasoning in Roman v. Al Limousine, Inc., supra, should have been applied to the instant matter. The Appellate Division, First Department held in Calcano v. Rodriguez, 91 AD 3d 468 (1st Dept. 2012), as follows: "Binding precedent of the Court of Appeals holds that the plaintiff in a negligence action cannot obtain summary judgment as to liability if triable issues remain as to the plaintiffs own negligence and share of . culpability for the accident (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993], affg. 189 A.D.2d 635, 592 N.Y.S.2d 333 [1993]; see also Johnson v. New York City Tr. Auth., 88 A.D.3d 321, 329-332, 929 N.Y.S.2d 215 [2011] [Friedman, J., dissenting in part]). In the incident underlying Thoma, the defendant's van struck the plaintiff, a pedestrian, as she was crossing an intersection. This Court affirmed the denial of the plaintiff's summary judgment motion, stating: "Although defendant did not dispute plaintiffs averment that she was lawfully in the crosswalk when he struck her with his van as he turned left, summary judgment was properly denied since a failure to yield the 13 PICCIANO PC SCAHILL right of way does not ipso facto settle the question of ·whether the other party was herself guilty of negligence" (189 A.D.2d at 635-636, 592 N.Y.S.2d 333). The Court of Appeals affirmed this Court's order in Thoma with the following explanation: "The submissions to the nisi prius court ... demonstrate that [plaintiff] 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" (82 N.Y.2d at 737, 602 N.Y.S.2d 323, 621 N.E.2d 690). As this Court recognized in a unanimous decision issued two years ago (see Lopez v. Garcia, 67 A.D.3d 558, 889 N.Y.S.2d 174 [2009]), Thoma stands for the proposition that a plaintiff moving for summary judgment on the issue of liability in an action for negligence must eliminate any material issue, not only as to the defendant's negligence, but also as to whether the plaintiffs own comparative negligence contributed to the incident. The Second Department consistently recognizes that Thoma governs this issue (see Mackenzie v. City of New York, 81 A.D.3d 699, 916 N.Y.S.2d 511 [2011]; Bonilla v. Gutierrez, 81 A.D.3d 581, 915 N.Y.S.2d 634 [2011]; Roman v. Al Limousine, Inc., 76 A.D.3d 552, 552-553, 907 N.Y.S.2d 251 [2010]; Cator v. Filipe, 47 A.D.3d 664, 664-665, 850 N.Y.S.2d 510 [2008]; ,··-Albert v. Klein, 15 A.D.3d 509, 510, 789 N.Y.S.2d 684 [2005])." The First Department holding in Maniscalco v. New York City Tr. Auth., 95 AD 3d 510 (1st Dept. 2012), resulted from a similar fact pattern wherein the Court held: "Although plaintiff presented uncontroverted evidence that the defendant driver negligently failed to yield the right-of- way in a pedestrian crosswalk, the record also raises-as the 14 PICCIANO PC SCAHILL dissent acknowledges-a triable issue concerning plaintiffs comparative fault. The Court of Appeals held in Thoma v Ronai (82 NY2d 736 [1993], affg 189 AD2d 635 [1993]) that, even where the record establishes the defendant's negligence, the plaintiff is not entitled to summary judgment as to liability where a question of comparative fault must be resolved at trial. Although a different panel of this Court declined to follow Thoma in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [2010]), the Thoma holding is recognized and followed by the Second Department (see Roman v Al Limousine, Inc., 76 AD3d 552 [2010]) and, very recently, by yet another panel of this Court in Calcano v Rodriguez (91 AD3d 468 [2012]). While Thoma mandates the modification of the order appealed from to deny plaintiffs motion for summary judgment as to riability, we affirm the order insofar as it directs that there be a trial of the issue of comparative fault." Further, in Schmidt v. S.M. Flickinger Co., 88 Ad 2d 1068 (3rd Dept. 1982), the Third Department 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)." Finally, even if the Plaintiff-Respondent had the "right-of-way" in crossing the roadway, she still had a duty to avoid an impact if possible. See Gause v. Martinez, 91 AD 3d 595 (2d Dept. 2012); Todd v. Godek, 71 AD 3d 872 (2d Dept. 2010). Since the Plaintiff-Respondent was not struck by the front bumper of the Kruse vehicle, but rather, the Plaintiff-Respondent, 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- Respondent could have avoided the accident because if the Plaintiff-Respondent 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. 15 PICCIANO PC SCAHILL Moreover, the location of the impact points on the Kruse vehicle and the Plaintiff- Respondent's body demonstrate that the Plaintiff-Respondent, through the proper use of her senses (her eyes), 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. Therefore, it is respectfully asserted that the "distinctions" noted by the majority in this opinion have now created a discrepancy among the Departments, requiring the intervention of this Court. This Court must determine whether or not the prior holding in Thoma v. Ronai, supra, is controlling, and if so, it must go a step further and clarify the duties of a pedestrian as they cross the street. Specifically, whether or not a pedestrian may simply look left and right before leaving the safety of the sidewalk, and thereafter has no further duty to check for vehicles, or if a pedestrian, even after ensuring it was safe to begin crossing the roadway, must remain vigilant, and have a duty to avoid an impact with a vehicle if possible. It is respectfully asserted that Justice Dillon's dissent concisely and eloquently outlines the reasons why this Court must not only reverse the Appellate Division, Second Department's holding in this matter, but further, must clarify the duties and responsibilities of a pedestrian whife crossing a roadway. Justice Dillon's dissent held as follows: "There are three reasons why I disagree with the majority determination to reverse: (1) it misapprehends four separate factual aspects of the case that raise issues of comparative negligence, (2) it fails to correctly apply controlling precedent from the Court of Appeals, as weH as this Court, and (3) it effectively creates new law that has no basis in decisional authority. Each reason is discussed in turn. The majority's first misapprehension involves the direction of travel of the defendants' vehicle. Photographs of the intersection that are in the record irrefutably demonstrate that the intersection is more of a three-way intersection with Keith Lane, from which the defendant driver turned, being several yards to the west of the other three entry points. The photographs, which are as much a part of the record as any party's deposition testimony, demonstrate that the defendant driver necessarily completed, or virtually 16 PICCIANO PC SCAHILL completed her left turn from Keith Lane and traveled through the three-way portion of the intersection in order to then reach the unmarked crosswalk where the injured plaintiff was walking. Any suggestion that the defendants' vehicle was somehow "behind" ·the injured plaintiff at the time of the impact is a physical impossibility given the ·configuration of the photographed roadways. The. accident could not therefore involve a vehicle traveling from behind the injured plaintiff, as the majority implies, but was necessarily more perpendicular to the injured plaintiff upon the car's approach from her side. With the defendants' vehicle's headlights pointing toward the unmarked crosswalk as it approached essentially from the injured plaintiff's side, the injured plaintiff must have been truly oblivious of her surroundings to have not seen the car at any time, as she admitted in her deposition testimony. Under these circumstances, a jury could easily and rationally assess to the injured plaintiff a percentage of comparative negligence, and this Court should not improperly usurp that fact-finding function. The second fact misapprehended by the majority involves where the injured plaintiff was looking at relevant times. The majority notes that the injured plaintiff waited for the traffic light to be in her favor before leaving the curb to cross the highway. In doing so, however, the majority ignores the injured plaintiffs admission at her deposition that, as she crossed the lanes of travel, she failed to look to her sides and instead looked only ahead of her. The injured plaintiffs duty of care, even if vested with a right-of-way under Vehicle and Traffic Law §§ 1152(a) and llO{a), does not end when she leaves the curb but is, instead, a continuing one as she traversed across the three-lane roadway (see Schmidt v Flickinger Co., 88 AD2d 1068, 1069; Counihan v Werbelovsky's Sons, 5 AD2d 80, 83). The Court of Appeals has held, under facts virtually identical to those here, that the award of summary judgment to a plaintiff in a pedestrian knockdown case is not appropriate where the plaintiff fails to look to the sides while in the process of crossing an intersection (see Thoma v Ronai, 82 NY2d 736). This Court 17 PICCIANO PC SCAHILL · has also held-under almost identical facts of a plaintiff crossing a highway as the defendant vehicle made a left turn at the intersection-that summary judgment was not appropriate where, as here, the injured plaintiff did not look to her sides while in the process of crossing (see Yi Min Feng v Jan Won Oh, 71 AD3d 879). Here, the defendants' vehicJe approached the injured plaintiff from her side. The third fact misapprehended by the majority is the injured plaintiffs admission at her deposition that she never saw the defendants' oncoming vehicle before the accident, even though the vehicle approached her from the side with its headlights on. In Lopez v Garcia (67 AD3d 558), another case involving a pedestrian knockdown while the defendant's vehicle turned into an intersection, there were triable issues of fact as to comparative negligence because the injured plaintiff stated in an affidavit that she did not see the defendant's vehicle before contact with it. Here, the injured plaintiff failed to see what was there to be seen through the proper use of her senses (see Espiritu v Shuttle Express Coach, Inc., 115 AD3d 787; Brandt v Zahner, 110 AD3d 752; Colpan v Allied Cent. Ambulette. Inc., 97 AD3d 776, 777; Topalis v Zwolski, 76 AD3d 524, 525; Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896). The fourth fact misapprehended by the majority concerns the uncontested evidence that the injured plaintiff's point of impact with the defendants' vehicte was at the driver side door and side mirror. One can reasonably and logically infer from this testimony that the injured plaintiff walked into the side of the defendants' vehicle after it had already entered and was traveling beyond the intersection on Montauk Highway's eastbound lane. Such an inference is supported by the photographed configuration of the accident scene, requiring vehicles making left turns from Keith Lane onto Montauk Highway to negotiate the turn in order to then proceed to the general area where the accident occurred. Where plaintiff pedestrians have had impacts with the side of a passing vehicle, as here, many appellate decisions have upheld summary judgment and trial verdicts in favor of the 18 PICCIANO. PC SCAHILL defendant motorists, not the pedestrians, based partially or entirely upon the location of the contact with the side of the cars (see Rogers v City of New York, 52 AD3d 589; Carrasco v Monteforte, 266 AD2d 330; Moskowitz v Israel, 209 AD2d 676; Fieldy v Weimer, 169 AD2d 961). The point of the injured plaintiff's contact alone, aside from any other facts or evidence, dictates the denial of summary judgment to the plaintiffs, and at least raises a triable issue of fact for the jury as to her contributory fault Indeed, in awarding summary judgment on the issue of liability to a plaintiff pedestrian who struck the driver side of a moving vehicle, the majority fails to adhere to established New York jurisprudence. Clearly, the point of impact between the injured plaintiff and the defendants' vehicle raises a triable issue of fact as to the injured plaintiff's comparative fault in walking into the side of a passing vehicle while she, according to her deposition testimony, was singularly focused on what was straight ahead of her as she walked across a three-lane roadway, rather than being mindful of her broader surroundings. In addition to the significant facts overlooked or misunderstood by the majority, the majority has misapplied controlling case law such as Thoma, Yi Min Feng, and Lopez by making distinctions that those cases did not involve vehicles approaching pedestrian_s from the rear. The majority's position in this regard is faulty for two reasons. First, the premise that the defendants' vehicle somehow approached from behind her is refuted by the uncontested configuration of the intersection, regardless of its point of initial origin. Second, the majority misconstrues Thoma, Yi Min Feng, and Lopez, as those cases were not determined by the direction of the cars involved but by the plaintiffs' failures to be aware of their surroundings on trafficked roadways. In addition to overlooking crucial facts and ignoring controlling precedent, the majority, in my view, creates new law that is untenable. In essence, the majority holds that as 19 PICCIANO PC SCAHILL long as a pedestrian looks both ways and steps off a curb with the traffic light in his or her favor, the pedestrian is relieved of any further duty of care while crossing multiple lanes of traffic on a dark and rainy morning, without need to ever look again left or right, and be oblivious to one's broader surroundings. That proposition is not now and never has been the law (see Thoma v Ronai, 82 NY2d at 736; Yi Min Feng v Jan Won Oh, 71 AD3d at 879; Lopez v Garcia, 67 AD3d 558; Schmidt v Flickinger Co., 88 AD2d at 1069; Counihan v Werbelovsky's Sons, 5 AD2d at 83). The majority also makes new law that pedestrians need not concern themselves with vehicles that make turns into intersections, so long as the vehicles initially originate from the rear of four potential entry points. In the area of pedestrian knockdown cases, the majority cannot reach the conclusion it reaches here without creating new law that viol ates clear and consistent appellate precedents that are to the contrary. Accordingly, I respectfully dissent." Based upon the foregoing, the majority's determination, which is based upon an inappropriate distinction that is based upon a misinterpretation of the facts in this matter, requires the reversal of the majority's decision. Furthermore, it is respectfully asserted that the well-reasoned dissent of Justice Dillon should be adopted by this Court, and the controlling principals of Thoma, supra, must be applied to the instant matter. CONCLUSION It is respectfully asserted that based upon the foregoing it has been established that the Decision and Order of the Appellate Division, Second Department, dated July 29, 2015, was based ,upon a misinterpretation of the facts of this accident, and therefore, a misapplication of the controlling case law of this case. Moreover, in reaching the underlying Decision and Order, the majority inappropriately created a distinction with regards to the duties of a pedestrian while crossing the roadway. As such, it is respectfully asserted that this Court must reverse the Appellate Division, Second Department's July 29, 2015 Decision and Order. Moreover, it is respectfully asserted that the dissenting opinion of Justice Dillion, who took into consideration the factual aspects of this accident (the location of the vehicle and the impact points), as well as the outlined duties of a pedestrian while 20 PICCIANO.· Pt SCAHILL crossing the street, provided a well-reasoned analysis of this matter. Consequently, it is respectfully requested that this Court adopt the dissent of Justice Dillon, and re-instate the issue of liability, and setting it down for a determination by a trier of fact, as there are outstanding issue with regards to the issue of comparative negligence. Thank you for your courtesy and attention to this matter. Res ectfully submitted, PI IANO & SCAHILL, P. C. 21 PICCIANO PC SCAHILL EXHIBIT A Supreme Court of the State of New York ·Appellate Division: Second Judicial Department __ AD3d __ PETER B. SKELOS, J.P. MARK C. DILLON COLLEEN D. DUFFY HECTOR D. LASALL~, JJ . . 2014-10307 DECISION & ORDER Argued - June 1, 2015 Marie Castiglione, et al., appellants, v Robert Kruse, et al., respondents. (Index No·. 356/12) D46282 C/htr ·Michael S. Langel~a, P.C., Hauppauge, N.Y., and Justin B. Perri PLLC, Rockville Centre, N.Y., for appellants (one brief filed). Picciano & Scahill, P.C., Westbury, N.Y. (Francis· J. Scahill and Andrea E. Ferrucci of counsel), for respondents. In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their ·brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated July 11, 2014, as denied their motion for summary judgment on the issue of liability. ORDERED that the·,order is reversed insofar as appealed from, ori the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted. On October 19, 2011, at approximately 6:40 a.m., Marie Castiglione (hereinafter the injured plaintiff), was walking southbound across Montauk Highway near its intersection with Keith Lane in West Islip, when she was struck by the defendants' vehicle,· which was making a left turn from Keith Lane to proceed eastbound on Montauk Highway. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants to recover damages for personal injuries and loss of consortium, respectively. The plaintiffs moved for summary judgment on the issue of liability, and ·the d~fendants cross-moved for summary judgment on the issue of liability. The Supreme Court denied the motion and cross motion. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability (see Vehicle and Traffic Law § l 152[a]; Garcia v Lenox Hill Florist III, Inc., 120 AD3d 1296; Brown v Mackiewicz, 120 AD3d 1172; Hamilton v King Tung Kong, 93 July 29, 2015 Page l. CASTIGLIONE v KRUSE ~- ·~ . -,, AD3d 821; see also Moreira v MK Travel & Transp., Inc., 106 AD3d 965). The deposition testimony of the injured plaintiff and a nonparty witness established that prior to entering the . roadway, the injured plaintiff waited for the traffic light controlling the east-west traffic on Montauk Highway to turn red, then iooked to her left and right, and, seeing no cars, started to walk southbound across Montauk Highway. The testimony further established that the injured . plaintiff· traversed the· westbound left-turn lane, and while in the eastbound lane .of Montauk Highway, having almost completed crossing, was struck by the defendants' vehicle, which had turned left from Keith Lane to proceed east on Montauk Highway. Significantly, this testimony established that, prior to the impact, Karen Kruse (hereinafter the defendant driver), started her approach to the point of impact from behind and to the right of the injured plaintiff, that is, from behind the injured plaintiff's right shoulder and out of her view. The defendant driver conceded in her deposition testimony that she did not see the injured plaintiff prior to impact, despite the fact, established by her own testimony, that the injured plaintiff was generally in front of her prior to the impact. Under these circumstances, the plaintiffs established that the defendant driver was negligent and that the injured plaintiff was free from comparative fault. In opposition to the plaintiffs' prima facie showing, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) .. The defendants' unsupported speculation that the injured plaintiff was comparatively at fault was insufficient to raise a triable issue of fact (see Garcia v Lenox Hill Florist III, Inc., 120 AD3d at 1297; Hamilton v King Tung Kong, 93 AD3d 821; Sulaiman v Thomas, 54 AD3d 751, 752). The cases relied upon by . our dissenting colleague are each factually distinguishable from the instant case, ·in various respects. The three cases share one important· distinguishing fact: the vehicles in all three cases were coming from a direction generally in front of the injured plaintiff before the impact with the injured plaintiff occurred. Here, th.e defendants' vehicle was coming from a direction which was largely behind the injured plaintiff, and to her right, prior to the impact. This important fact, in addition to other facts present in this case, demonstrated that the injured plaintiff was free from comparative fault in the happening of the accident. In Yi Min Feng v Jin Won Oh (71 AD3d 879), the plaintiff pedestrian was only one-third of the way into the intersection when she was struck on her left side by the defendant's vehicle, which was making a tum. The plaintiff did not look to her left either before or while she was cross1ng the street and she was struck by a vehicle c.oming from in front of her. In the instant case, the injured plaintiff looked both ways before crossing, traversed almost two lanes of traffic, and had almost completed crossing when she was stuck by the defendants' vehicle, which started its approach from behind her. In Lopez v Garcia (67 AD3d -'558), the Appellate Division, First Department, found that there were triable issues of fact as to the plaintiff's comparative fault because (1) the plaintiff's affidavit indicated that she· did not see the defendants' vehicle prior to being struck, (2) the police accident report indicated that a witness observed that the plaintiff never looked before walking into the roadway, and (3) the defendant's affidavit stated that after he made a left turn, he saw the. plaintiff run into the front passenger bumper of his vehicle. Lopez is distinguishable from the instant case because the plaintiff in Lopez failed to see a vehicle which was comfog from in front of her, while here, the injured plaintiff did not see the defendants' vehicle, which July 29, 2015 Page I. CASTIGLIONE v KRUSE was coming· from behind her.. Additionally, the witness in Lopez indicated that the injured plaintiff never looked when walking into the roadway, whereas here, the witness indicated that the injured plaintiff looked both ways before entering the roadway. Here, there is rto evidence· to contradict the injured plaintiff's proof that she looked both ways prior ro entering the unmarked crosswalk. Moreover, in Lopez, the defendant actually saw the plaintiff run into his vehicle, . unlike here, where the defendant never saw the injured plaintiff prior to impact, and indeed, did not know that she had struck a person until after the impact. · In Thoma v Ronai (189 AD2d 635, affd 82 NY2d 736), the plaintiff was crossing south on East 79th Street in Manhattan, and was halfway through the intersection when she was struck on her left side by ·the defendant's van, which was turning left onto 79th Street from First Avenue. In her affidavit, the plaintiff averred that she waited at the intersection for the light to change, and when the light changed and the pedestrian signal flashed "walk," she began to walk south in the crosswalk. When she reached the center of the crosswalk she was struck on her left side, but did not see what struck her. The defendant's van came from in front of the plaintiff, not behind her. The Appellate Division, First Department, affirmed an order denying the plaintiff's motion for summary judgment, finding that there was an issue of fact as to whether the plaintiff was comparatively at fault. The Court stated that "the law is clear that plaintiff had a duty to use her eyes to protect herself from danger, and that her failure to look would constitute negligence" (189 AD2d at 63 7). Here, the evidence demonstrated that once the traffic light changed in favor of the iniured plaintiff, she looked in boih directions before crossing, unlike the plaintiff in Thoma, who f~iled t.o look at all. Althot1gh the iniurP