| Sulaiman v Thomas |
| 2008 NY Slip Op 06824 [54 AD3d 751] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Yakubu E. Sulaiman et al., Respondents, v Carson C.Thomas, Appellant. |
—[*1] Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & De Cicco, NewYork, N.Y. [Brian J. Isaac],of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (F. Rivera, J.), dated May 4, 2007, which granted theplaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
While the defendant correctly contends that the Supreme Court erred in applying Vehicle andTraffic Law § 1146 to this case, rather than the provisions of the Rules of the City of NewYork, we nonetheless conclude that the Supreme Court properly granted the plaintiffs' motion forsummary judgment on the issue of liability. In an affidavit submitted in support of the plaintiffs'motion for summary judgment on the issue of liability, the injured plaintiff stated that he waswalking southbound on Euclid Avenue in Brooklyn, crossing Sutter Avenue in a crosswalk, witha green signal, when he was struck by a vehicle driven by the defendant. The defendant wastraveling northbound on Euclid Avenue, and made a "sudden and abrupt turn" into the crosswalkon Sutter Avenue, leaving the injured plaintiff no time to react. Furthermore, the police reportconcerning the accident contains the defendant's statement that he was making a right turn intothe intersection and he did not see the injured plaintiff because of another car turning left fromEuclid Avenue onto Sutter Avenue. Accordingly, the plaintiffs made a prima facie showing ofentitlement to judgment as a matter of law (see 34 RCNY 4-03 [a] [1] [i]; 4-04 [d];Rosenblatt v Venizelos, 49 AD3d [*2]519 [2008]; Beamud v Gray, 45 AD3d 257[2007]; Abramov v Miral Corp., 24AD3d 397 [2005]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
In his opposing affidavit, the defendant stated, inter alia, that as he made his right turn ontoSutter Avenue, the intersection and crosswalk were free of pedestrians. As he cleared theintersection, he saw several pedestrians standing on the sidewalk to his right shouting andpointing to the right side of his vehicle. He stopped, exited his vehicle, and only then saw theinjured plaintiff lying on the road next to his vehicle. The defendant argued that the injuredplaintiff's negligence was the sole cause of the accident, and that he had stepped off the sidewalkand walked into the right side of the defendant's vehicle "approximately" three feet east of thecrosswalk. The defendant failed to raise a triable issue of fact in opposition to the plaintiffs'prima facie showing (see Beamud vGray, 45 AD3d 257 [2007]; Abramov v Miral Corp., 24 AD3d 397, 398 [2005]). His affidavitmakes clear that he did not see the injured plaintiff prior to striking him. The defendant alsocontended that the injured plaintiff was comparatively negligent. However, the defendant'sunsupported speculation that the injured plaintiff was comparatively negligent was insufficient toraise a triable issue of fact (see Beamudv Gray, 45 AD3d 257 [2007]).
The defendant's remaining contentions are without merit. Ritter, J.P., Miller, Dillon andMcCarthy, JJ., concur.