| DeJesus v Alba |
| 2009 NY Slip Op 04704 [63 AD3d 460] |
| June 9, 2009 |
| Appellate Division, First Department |
| Diomara DeJesus, an Infant, by His Father and Natural Guardian,Francisco DeJesus, Respondent, v Jose J. Alba et al.,Appellants. |
—[*1] Ami Morgenstern, Long Island City (Howard A. Chetkof of counsel), forrespondent.
Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered August 4, 2008, whichdenied defendants' motion for summary judgment dismissing the complaint, reversed, on the law,without costs, and the motion granted. The Clerk is directed to enter judgment in favor ofdefendants dismissing the complaint.
There is no question of fact as to how the accident occurred. The record supports theconclusion that plaintiff, 16 years old at the time of the accident, elected to enter the streetbetween cars and, as a result, ran (or in plaintiff's hastily contrived revision, "walked") intodefendant's car, without warning.
At her deposition, plaintiff gave two versions of the accident. She first testified that theaccident occurred in front of her then-boyfriend's house, where she was playing at an open firepump. When the accident happened, she was "running away from a guy" called Wacho, a20-year-old friend, who was trying to get her wet. When he started chasing her, she was on thesidewalk and then she ran into the street. Before she ran into the street she saw a car waiting forthe light to change towards her right.
Plaintiff testified that she did not see the car before it hit her. She was hit by the "front" ofthe car, coming from her right side, and it hit her left leg. The impact was light, but knocked herto the ground on her left side.
She also testified that the police asked her questions at the accident scene, and, specifically,she was asked how the accident happened. She said that she told the police, "I didn't remember."This initial inability to remember is particularly significant, because, after her testimony, hercounsel requested a recess, and, when the parties went back on the record, stated that plaintiffwanted to "correct the previous statement she made." Plaintiff then testified that she had runacross the street, and then walked back out into the street to get her sandal. She was actuallywalking at the time she was hit.
Defendant Ynes Alba testified that when the accident occurred, she was driving two friendsand her two children home from church in her minivan. One of her friends lived on MinervaPlace, about two buildings down from the open fire hydrant, and defendant had been therebefore. The weather was sunny, nothing obstructed her vision, and she was not engaged inconversation, eating, drinking, smoking, or [*2]using a cellphone. Her maximum rate of speed was between 10 and 20 miles per hour.
She turned right onto Minerva Place from Jerome Avenue after waiting for a traffic light tochange, and saw a fire hydrant spraying water, and five or more children playing in the street andon the sidewalk. She slowed her car down to about 10 miles an hour when she saw them.
The pedestrian came into contact with the driver's side door and mirror of her van. She didnot apply the brakes or hear any warning sound before the impact. After the contact, she stopped,got out of the car, and asked the "young girl" who had been hit what was wrong. Plaintiff said"nothing," and then defendant asked her what happened. Plaintiff told defendant driver that "shewas running away from the water pump" because somebody was going to spray her with waterand she did not see defendant and "ran halfway into the street, and she ran into my car."Defendant called the police and waited until they came.
A nonparty witness, Rodolfo Vittini, who resides at Minerva Place, testified that, at the timeof the accident, he was outside watching his son at play with the other children. He does notknow either plaintiff or defendant. He testified that, before the accident occurred, plaintiff and 8to 10 other children were running around and playing in the water at the fire hydrant. They werethrowing water at each other and running up and down the street, and back and forth across thestreet. Vittini first said that he was sitting in front of his building and remained there the entiretime, but later said that he had been sitting on a step of a building across the street from hishouse, and crossed back shortly before the accident because his son wanted to go home.
He saw defendant's car turning onto Minerva Place, and then it slowed down because aperson was crossing the street. At the time of the accident, the car was "moving very slow."Plaintiff was being chased by a young boy who was trying to pour water on her, and "crossed inbetween two cars and then she crashed against the van" on the driver's side. When he first sawthe van, he told the girl to be careful and yelled "watch out," but she continued. The girl crossedMinerva, and then tried to cross back, which is when the accident occurred. When he said"[w]atch out," the girl was "coming, running towards me, and she turned around, like avoiding ayoung boy," then ran between the two cars towards the street. She "never stopped," because"[s]he was looking backwards" at the boy who was chasing her.
The police report of the accident states, in pertinent part, "pedestrian jumped out frombetween two cars."
Defendants moved for summary judgment dismissing the complaint, arguing that there wasno issue of fact as to defendant driver's negligence, because the record demonstrated thatplaintiff ran into the van. The motion court found that defendants had not satisfied their primafacie burden, because there were issues of credibility as to whether plaintiff was walking whenshe was hit, as well as whether she was struck by the front end of the car, in which case "thedefendant may have had an opportunity to see the plaintiff before the accident occurred," and"also should have seen the plaintiff run across the street the first time before she came back forher sandal." The court also found that there was "a question of reasonableness that must beresolved by the trier of fact," given that the conditions on Minerva Place just prior to the accident"included children playing in the street and a fire hydrant spraying water onto the street."
In the first instance, there is no doubt that the accident occurred, whether plaintiff wasrunning or walking, after she entered the street, without warning, from between two parked cars.Under even plaintiff's revised version that she was walking back to get her sandal, she came into[*3]contact with the vehicle after entering the street other than inthe crosswalk. Had plaintiff, who was 16 years old, not entered the street, without warning, therewould have been no accident. Such a factual scenario warrants dismissal of the complaint (see e.g. Jellal v Brown, 37 AD3d179 [2007]; Cunillera v Randall, 196 AD2d 75 [1994], lv denied 84 NY2d808 [1994]).
A driver in an area where children are playing need not exercise "extreme care or caution,"although she must exercise the care that a reasonably prudent person would exercise under thecircumstances (Quarcini v Blackwell, 10 NY2d 843, 844 [1961]).
The dissent relies on the decision in St. Andrew v O'Brien (45 AD3d 1024 [2007], lv dismissed inpart and denied in part 10 NY3d 929 [2008]), for its conclusion that there are unresolvedfactual issues. In St. Andrew, the 15-year-old plaintiff was attending a festival held in acommunity center parking lot and, while being chased by friends, dashed between two parkedcars into the street and was struck by the defendant's vehicle. The Court, acknowledging that theissue of the driver's potential liability was "problematic," nevertheless found that since the driverknew "she was approaching an area congested with people, including children, on a street thatwas narrowed by parked cars," there was a question as to whether her speed was reasonableunder the circumstances (id. at 1028, citing Vehicle and Traffic Law § 1180 [a]).
Unlike the situation in St. Andrew, however, there is testimony by both the driverand the nonparty witness here that defendant slowed down her car, and even plaintiffacknowledged that the impact was light. The only way there could have been no impact was ifdefendant had stopped her car entirely. Yet, stopping the car was unnecessary since plaintiff wason the sidewalk prior to the accident. It should also be noted that the 17-year-old driver in St.Andrew was in violation of section 501 (3) (b) of the Vehicle and Traffic Law, because shewas operating her vehicle after 9:00 p.m. with only a junior license, and was unaccompanied byan adult.
Under the circumstances presented here, we find that there is no issue of fact as to whetherthe adult driver acted prudently, particularly because the version of the incident that plaintiff firstgave at her deposition did not assign liability to defendant. Concur—Tom, J.P., Nardelliand Catterson, JJ.
Mazzarelli and Moskowitz, JJ., dissent in a memorandum by Mazzarelli, J., as follows:Plaintiff, a teenager, and several other children, were playing at an open fire hydrant on a hotsummer day. The hydrant was located on the sidewalk of Minerva Place in the Bronx, close tothe intersection of Minerva Place and Jerome Avenue. Plaintiff claims that a minivan operatedby defendant Ynes Alba struck her after she had walked into the middle of Minerva Place, nearthe hydrant. Alba, however, asserts that plaintiff suddenly "darted" into the street from betweensome parked cars and ran into the side of her car.
At her deposition, plaintiff testified first that she had run into the middle of the road becauseshe was escaping from a friend who was trying to get her wet with water from the hydrant. Aftera consultation with her attorney, plaintiff clarified that she had not run into the [*4]middle of the street immediately prior to being struck.Rather, she stated, she had walked back into the street to retrieve a sandal that had fallen offwhile she was being chased. Plaintiff also asserted that she did not see the minivan before it hither.
When deposed, Alba testified that immediately before the accident she had been stopped at atraffic light on Jerome Avenue. She said she made the right turn onto Minerva Place, where therewere cars parked on both sides of the street. Alba stated that she had moved approximately fourcar lengths onto Minerva Place when the accident happened. During that time, she recalledhaving achieved a rate of speed no slower than 10 miles per hour, but possibly as fast as 20 milesper hour. She also related that, as she traveled those four car lengths before the accidentoccurred, she was able to observe the open hydrant, and that there were "a lot" of children in thearea, both on the sidewalk and in the street.
Initially, Alba testified that she never applied her brakes before the accident occurred. Then,she stated that she slowed her car down to 10 miles per hour upon observing the children. Whenasked to repeat how she related the accident to police officers who arrived on the scene, Albagave the following answer:
"I was coming from Jerome. I had left the traffic light at Jerome. I got onto Minerva Place.The girl came from my left side and hit up against my car. I hadn't seen her . . . shedidn't cross in front of me. It was on my side. When she hit my car, because of that impactagainst my car, is when I saw her.
"I was driving along Minerva. The little the girl [sic] was running along the sidewalkon my left side, then suddenly turned and ran between two cars and ran up against my driver'sside door. She was screaming, 'I didn't see her. I didn't see her. I didn't see her.' "
Nonparty witness Rodolfo Vittini testified that he was sitting on the stoop of a building onthe same sidewalk as the hydrant for nearly two hours prior to the accident. He stated thatapproximately 15 minutes before the accident he observed plaintiff chasing and being chased byher friends in and around the hydrant. He further related that immediately before the accident hecrossed the street to enter his own apartment building. When he arrived on the other side of thestreet he observed Alba's minivan approaching. He also saw plaintiff crossing from the side thathe was now on back to the other side of the street (where the hydrant was). He told her to "watchout." After he uttered this warning, he asserted that plaintiff crossed all the way back to his side,and then, while she was crossing again to the other side, came into contact with Alba's minivan.According to Vittini, plaintiff ran into the minivan behind its left rear tire.
Defendants moved for summary judgment. They posited that the collective depositiontestimony established that Alba was not negligent as a matter of law and that there were noissues of fact necessitating a trial. Plaintiff argued that summary judgment was not warrantedbecause the testimony created questions of fact as to whether Alba had sufficient time prior tothe accident to avoid, or at least minimize, it.
The court denied the motion. It held that defendants failed to satisfy their burden of making aprima facie case. Moreover, plaintiff's testimony that she was walking immediately before theaccident, and that Alba's minivan hit her head on, raised a question of fact as to whether Albahad an opportunity to observe plaintiff and, if so, whether Alba took appropriate steps to avoidthe accident.[*5]
Negligence cases can "rarely be decided as a matter oflaw" because "even when the facts are conceded there is often a question as to whether thedefendant or the plaintiff acted reasonably under the circumstances" (Andre v Pomeroy,35 NY2d 361, 364 [1974]). This is just such a case. The descriptions of the accident given byplaintiff and defendant are at odds and cannot be resolved without a trial.
Plaintiff's deposition testimony alone could warrant a different conclusion than that urged bydefendants. If a jury were to find plaintiff to be credible, it could conclude that she was struck bythe front of Alba's minivan. It could further decide that she was in the middle of the street notbecause she had "darted" into it, but because she had walked there to retrieve her sandal.
Even if plaintiff did dart into traffic, issues of fact requiring a trial remain. For example, theportion of Alba's testimony where she recounts her description of the accident to police officersis internally contradictory. First, Alba stated that she "hadn't seen" plaintiff before plaintiff hither car. Then she stated that plaintiff "was running along the sidewalk on my left side, thensuddenly turned and ran between two cars."
This latter statement suggests that Alba did see plaintiff before impact.
In addition, although Alba observed children playing on the sidewalk in front of the hydrantand on the street, she testified that she had reached a speed as high as 20 miles per hour whiletraveling only four car lengths. Given the presence of the children playing on the sidewalk andstreet, and the reasonable likelihood that one or more would dart into traffic from between theparked cars, it cannot be concluded as a matter of law that defendant took all reasonable steps toavoid an accident. Moreover, Vittini testified that plaintiff crossed the street two times before theaccident, but after Alba's car turned onto Minerva Place. This raises a serious question as towhether Alba should have observed plaintiff and ensured that she was safely on the sidewalkbefore she decided to proceed.
To support their position, defendants rely on Jellal v Brown (37 AD3d 179 [2007]) as "the closest analogy" tothis case. However, in that case, it was "unrefuted that the infant plaintiff left the safety of thesidewalk, attempted to cross the roadway not at the crosswalk, and moved into the path of thevehicle." (Id.) Further, in that case, unlike here, there was no indication that the drivershould have had reason to anticipate that a child would step into traffic. In another case where itwas obvious that there were children in the immediate vicinity of the street, the ThirdDepartment declined to award the driver summary judgment (St. Andrew v O'Brien, 45 AD3d 1024 [2007], lv dismissed inpart and denied in part 10 NY3d 929 [2008]). There, the plaintiff was being chased byfriends at an outdoor festival. The plaintiff ran into the street from between two cars and wasstruck by the defendant's car. The court held that the driver "had knowledge that she wasapproaching an area congested with people, including children, on a street that was narrowed byparked cars. As such, whether the driver's speed was reasonable under the particularcircumstances in which she knowingly proceeded (see Vehicle and Traffic Law §1180 [a][FN*]) is a question for the trier of fact to resolve" (45 AD3d at 1028).
The majority argues that St. Andrew is inapposite because Alba slowed her car.However, the point of St. Andrew is that it cannot be concluded as a matter of law whatthe appropriate [*6]speed and driver behavior are incircumstances such as these. Indeed, as the Third Department observed in St. Andrew,"[i]n all but the most extraordinary instances, whether a defendant has conformed to the standardof conduct required by law is a question of fact necessitating a trial" (id. [internalquotation marks and citations omitted]). Here, even if Alba did slow down to 10 milesper hour, a jury must decide whether she should have slowed down even more, or possiblystopped, until she could be sure that it was safe to proceed.
The majority describes as "significant" the fact that, when asked by the police at the scene todescribe the accident, plaintiff could not remember. It suggests that her initial failure to recallsomehow makes suspect her request to correct certain testimony during her deposition. However,her lack of memory at the scene does not compel the conclusion that the fresh trauma of theaccident caused anything more than a temporary lapse.
Nor does plaintiff's correction of her testimony in the middle of the deposition support themajority's implication that the new testimony was concocted. There are a variety of reasons whyplaintiff may have felt the need to clarify her testimony. In any event, neither plaintiff's norAlba's recollection of the accident is perfect, nor is Vittini's, and plaintiff clearly disputes theversion of events offered by Alba and Vittini. While defendants may believe that plaintiff'stestimony is not true, that is for a jury, and only a jury, to decide. Our role on a motion forsummary judgment is to identify factual issues, not to resolve them (see Sillman v TwentiethCentury-Fox Film Corp., 3 NY2d 395, 404 [1957]). I cannot, on this record, conclude thatany flaws in plaintiff's memory make her completely incompetent to testify as to the cause of theaccident. In any event, Alba's deposition testimony, standing alone, presents issues of fact andprecludes summary judgment. Accordingly, I would affirm the order.
Footnote *: Vehicle and Traffic Law§ 1180 (a) provides that "No person shall drive a vehicle at a speed greater than isreasonable and prudent under the conditions and having regard to the actual and potentialhazards then existing."