| Hyatt v Messana |
| 2009 NY Slip Op 08351 [67 AD3d 1400] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Teresa Hyatt, Individually and as Parent and Natural Guardian ofRebecca Hyatt, an Infant, Respondent, v Anthony G. Messana et al.,Appellants. |
—[*1] Siegel, Kelleher & Kahn, LLP, Buffalo (Michael A. Iacono of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredMarch 3, 2009 in a personal injury action. The order denied defendants' motion for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained byher daughter when she was struck at an intersection by a vehicle operated by Kathy L. Messana(defendant). At the time of the accident, plaintiff's daughter was 12 years old and was riding herbicycle to school, in a school zone. The street on which she was riding her bicycle wascontrolled by a stop sign, but the street on which defendant was driving was not.
Supreme Court properly denied defendants' motion seeking summary judgment dismissingthe complaint. "Negligence cases by their very nature do not usually lend themselves tosummary judgment, since often, even if all parties are in agreement as to the underlying facts, thevery question of negligence is itself a question for jury determination" (Ugarriza vSchmieder, 46 NY2d 471, 474 [1979]). Plaintiff's daughter was subject to the dutiesapplicable to the driver of a vehicle pursuant to the Vehicle and Traffic Law when she rode herbicycle on the street (see Vehicle and Traffic Law § 1231; Baker v NassauCounty Police Activity League, 265 AD2d 515 [1999]), and defendants established thatplaintiff's daughter violated Vehicle and Traffic Law § 1142 (a) when she entered theintersection without yielding the right-of-way to defendant. In view of her age, however, it is fora jury to determine whether such statutory violation constitutes negligence (see generallyPoczkalski v Cartwright, 65 AD2d 945 [1978]; 1A NY PJI3d 2:49, at 341 [2009]).
In addition, defendant was under a duty to exercise a high degree of care while driving in a[*2]school zone (see 8B NY Jur 2d, Automobiles andOther Vehicles § 1111), and defendants' own submissions raise triable issues of factwhether defendant violated that duty. "Giving plaintiff 'the benefit of every favorable inference'. . . , as we must, we conclude that the evidence indicates that [her daughter] mayhave been positioned directly in front of defendant's motor vehicle prior to impact" (Spicola v Piracci, 2 AD3d 1368,1369 [2003]). That evidence, together with defendant's admitted failure to see plaintiff's daughterprior to the impact, raises a triable issue of fact whether defendant "failed to see that whichthrough proper use of [her] senses [s]he should have seen" (Baker, 265 AD2d at 516;see Spicola, 2 AD3d at 1369). Present—Martoche, J.P., Smith, Peradotto, Greenand Pine, JJ.