| Lopez v Garcia |
| 2009 NY Slip Op 08496 [67 AD3d 558] |
| November 19, 2009 |
| Appellate Division, First Department |
| Melissa Lopez, Respondent, v Jesus Garcia et al.,Appellants. |
—[*1] Noreen M. Giusti, Kew Gardens, for respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 2, 2009, which, inan action for personal injuries sustained when plaintiff and defendants' vehicle came into contact,granted plaintiff's motion for partial summary judgment on the issue of liability, unanimouslyreversed, on the law, without costs, and the motion denied and the case remanded for furtherproceedings.
Assuming, arguendo, that plaintiff satisfied her initial burden on the motion with evidencethat defendants' vehicle hit her as she was crossing the street in the crosswalk, with a green lightand walk sign in her favor, she would not be entitled to summary judgment. Issues of fact as toplaintiff's comparative negligence are raised by (1) plaintiff's statement in her affidavit that shedid not see defendants' vehicle before she was struck (see Thoma v Ronai, 82 NY2d 736[1993]); (2) the police accident report, which plaintiff submitted in support of her motionbecause it states that defendant driver told the police officer that plaintiff "was in his blind spot,"but which also states that the driver was "executing a legal left turn" and that a witness said thatplaintiff "never looked when walking into the roadway" (see id.; Cator v Filipe, 47 AD3d 664[2008], citing, inter alia, Schmidt v Flickinger Co., 88 AD2d 1068, 1068 [1982] [havingright-of-way in a crosswalk does not absolve a pedestrian "from looking, while so crossing, forvehicles approaching which deny her that right"]); and (3) defendant driver's affidavit inopposition stating, not inconsistently with the police report, that as he was straightening out hisvehicle after making a left turn with a green light, plaintiff, whom he had noticed before theaccident running "with other people approximately her age," ran into "the front passengerbumper of my vehicle, on the right side," "in a place where I could not see her." We note thatplaintiff made her motion for summary judgment two months after joinder of issue, before apreliminary conference had [*2]been conducted and beforedefendants had a fair opportunity to depose plaintiff or the witness mentioned in the police report(CPLR 3212 [f]; see Bradley v IbexConstr. LLC, 22 AD3d 380 [2005]). Concur—Tom, J.P., Friedman, Moskowitz,Freedman and Abdus-Salaam, JJ.