| Mazza v Manzella |
| 2008 NY Slip Op 02116 [49 AD3d 609] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Joseph Mazza, Jr., et al., Respondents, v Theresa Manzella,Appellant. |
—[*1] McCarthy & Kelly, LLP, New York, N.Y. (William P. Kelly of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from somuch of an order of the Supreme Court, Richmond County (McMahon, J.), dated May 29, 2007,as denied her motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is granted.
The defendant made a prima facie showing of entitlement to judgment as a matter of law bypresenting proof that the infant plaintiff, who was riding a motorized bicycle, exited a drivewayand collided into the defendant's motor vehicle in violation of Vehicle and Traffic Law§§ 1143 and 1173 (seeYasinosky v Lenio, 28 AD3d 652, 653 [2006]; Lallemand v Cook, 23 AD3d 533 [2005]; Trzepacz v Jara, 11 AD3d 531[2004]; Ferrara v Castro, 283 AD2d 392 [2001]). In opposition, the plaintiffs failed toraise a triable issue of fact. The fact that the infant plaintiff did not see the defendant'sapproaching car does not excuse the infant plaintiff's conduct (see Ferrara v Castro, 283AD2d at 393; Bolta v Lohan, 242 AD2d 356 [1997]). Furthermore, the infant plaintiff'saffidavit failed to raise a triable issue of fact regarding the defendant's alleged failure to takeevasive action (see McNamara vFishkowitz, 18 AD3d 721, 722 [2005]; Meliarenne v Prisco, 9 AD3d 353, 354 [2004]; Lupowitz vFogarty, 295 AD2d 576 [2002]). Accordingly, the defendant's motion for summary judgmentdismissing the complaint should have been granted. Spolzino, J.P., Santucci, Dillon and Balkin,JJ., concur.