| Yi Min Feng v Jin Won Oh |
| 2010 NY Slip Op 02134 [71 AD3d 879] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Yi Min Feng, Appellant, v Jin Won Oh,Respondent. |
—[*1] Richard T. Lau & Associates, Jericho, N.Y. (Gene W. Wiggins of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much an order of the Supreme Court, Kings County (Martin, J.), dated June 16,2009, as, upon granting her motion for summary judgment on the issue of liability to the extentof determining that the defendant was negligent as a matter of law, referred the issue ofcomparative negligence for trial.
Ordered that on the Court's own motion, the plaintiff's notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); andit is further,
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arose from an automobile accident at the intersection of 65th Street and 14thAvenue in Kings County. At the time of the accident, the plaintiff, a pedestrian, was crossing65th Street, from the southeast corner toward the northeast corner. The plaintiff had a "walk"sign in her favor, was within the crosswalk, and was about one-third of the way across the streetwhen she was struck on her left side by the defendant's vehicle as it was making a legal left turnonto 65th Street from 14th Avenue. The defendant had a green light in his favor at that time.
The evidence submitted by the plaintiff established, as a matter of law, that the defendantdriver violated Vehicle and Traffic Law § 1112 (a). However, the Supreme Court properlyconcluded that there was a triable issue of fact as to whether the plaintiff was comparativelynegligent in light of the evidence that she did not look to her left as she crossed the street. Thus,under the circumstances of this case, the Supreme Court properly referred the issue ofcomparative negligence for trial (seeLopez v Garcia, 67 AD3d 558 [2009]; Gideon v Flatlands Beverage Distribs., Inc., 59 AD3d 596 [2009];Cator v Filipe, 47 AD3d 664[2008]; Albert v Klein, 15 AD3d509 [2005]; Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736[1993]; Schmidt v Flickinger Co., 88 AD2d 1068 [1982]). Fisher, J.P., Santucci, Eng andChambers, JJ., concur.