| Lopez v Beltre |
| 2009 NY Slip Op 01449 [59 AD3d 683] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Oscar Lopez et al., Appellants, v Ramon C. Beltre,Defendant, and Village of Port Chester, Respondent. |
—[*1] O'Connor, McGuiness, Conte, Doyle & Oleson, Uniondale, N.Y. (Congdon, Flaherty,O'Callaghan, Reid, Donlon, Travis & Fishlinger [Christine Gasser], of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.),entered June 3, 2008, as granted the motion of the defendant Village of Port Chester forsummary judgment dismissing the complaint insofar as asserted against it and, in effect, denied,as academic, those branches of their cross motion which were to dismiss the affirmative defensesin the answer of the defendant Village of Port Chester that the infant plaintiff was comparativelynegligent and that the infant plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d).
Ordered that the order is modified, on the law, by deleting the provisions thereof granting themotion of the defendant Village of Port Chester for summary judgment dismissing the complaintinsofar as asserted against it and, in effect, denying, as academic, that branch of the plaintiffs'cross motion which was for summary judgment dismissing the affirmative defense in the answerof the defendant Village of Port Chester that the infant plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and substituting therefor provisionsdenying the motion of the defendant Village of Port Chester for summary judgment and grantingthat branch of the plaintiffs' cross motion which was to dismiss the affirmative defense of thedefendant Village of Port Chester that the infant plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d); as so modified, the order is affirmed insofar asappealed from, with costs to the plaintiffs.[*2]
The infant plaintiff was crossing the street after schoolwhen he was struck by a vehicle owned and operated by the defendant Ramon Beltre. Beltre wasattempting to make a left turn onto the southbound lane of Don Bosco Place from the westboundlane of Purdy Avenue and the plaintiff was attempting to cross Don Bosco Place when thecollision occurred. The intersection was governed by traffic light signals, and the defendantVillage of Port Chester (hereinafter the Village) stationed a crossing guard on Don Bosco Placeat its intersection with Purdy Avenue. As a result of the accident, the infant plaintiff and hismother, suing derivatively, commenced this action. The Village moved for summary judgmentdismissing the complaint insofar as asserted against it, contending that its crossing guard was notnegligent and that Beltre's negligence was the sole proximate cause of the accident. Theplaintiffs cross-moved, inter alia, to dismiss the affirmative defenses that the infant plaintiff wascomparatively negligent and that he did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d). The Supreme Court granted the Village's motion and, in effect,denied the plaintiffs' cross motion as academic. We modify.
On a motion for summary judgment, the court's function is to determine whether materialfactual issues exist, not to resolve such issues (see Sillman v Twentieth Century-Fox FilmCorp., 3 NY2d 395, 404 [1957];Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007]). A motion for summary judgment"should not be granted where the facts are in dispute, where conflicting inferences may be drawnfrom the evidence, or where there are issues of credibility" (Scott v Long Is. PowerAuth., 294 AD2d 348 [2002]; see Dolitsky v Bay Isle Oil Co., 111 AD2d 366[1985]).
The Supreme Court erred in granting the motion of the Village for summary judgmentdismissing the complaint insofar as asserted against it. Under the circumstances of this case, theVillage assumed a special relationship with the infant plaintiff (see Cuffy v City of NewYork, 69 NY2d 255, 260 [1987]; Vandewinckel v Northport/East Northport Union Free School Dist., 24AD3d 432, 433 [2005]). While the Village established its prima facie entitlement tosummary judgment on the ground that any duty owed to the infant plaintiff was not breached(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the plaintiffs, inopposition, raised triable issues of fact regarding the respective locations at the time of theaccident of the infant plaintiff, the approaching car, and the Village's crossing guard, in additionto what the crossing guard did or did not see and do (see Friends of Animals v AssociatedFur Mfrs., 46 NY2d 1065, 1067-1068 [1979]; Branch v Stehr, 93 AD2d 849, 850[1983]).
The Supreme Court, in effect, denied, as academic, that branch of the plaintiffs' cross motionwhich 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 ofthe collision, the infant plaintiff was within the crosswalk, with the right-of-way, or 20 feet southof it (see Vehicle and Traffic Law § 1152 [a]; Hopkins v Haber, 39 AD3d 471 [2007]).
The Supreme Court should have granted that branch of the plaintiffs' cross motion whichwas to dismiss the Village's affirmative defense that the infant plaintiff did not sustain a seriousinjury. The plaintiffs established prima facie that the infant sustained, inter alia, a fracture, and inopposition, the Village failed to raise a triable issue of fact (see Tagger v Olympic Van Line, Inc., 38 AD3d 646 [2007]).
The parties' remaining contentions have been rendered academic in light of ourdetermination. Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.