| Rosa v Scheiber |
| 2011 NY Slip Op 08136 [89 AD3d 827] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Carlos E. Rosa et al., Appellants, v Steven M. Scheiber etal., Respondents. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Mark J. Volpi of counsel), forrespondents.
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, Suffolk County (Gazzillo, J.), datedApril 23, 2010, as granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law bysubmitting evidence that the injured plaintiff walked out from behind a parked trailer, not withina crosswalk, directly into the path of the defendants' moving vehicle, leaving the defendant driverunable to avoid contact with the injured plaintiff (see Vehicle and Traffic Law §1152 [a]; Wolbe v Fishman, 29AD3d 785 [2006]; Ledbetter vJohnson, 27 AD3d 698 [2006]; Mancia v Metropolitan Tr. Auth. Long Is. Bus, 14 AD3d 665[2005]; Sheppeard v Murci, 306 AD2d 268 [2003]; Johnson v Lovett, 285 AD2d627 [2001]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether thedefendant driver operated the vehicle in a negligent manner (see Vehicle and Traffic Law§ 1146 [a]). The plaintiffs' contention that the evidence demonstrated that the driver shouldhave avoided the impact because he should have seen the injured plaintiff when he was 10 to 15feet away is without merit (see Miller v Sisters of Order of St. Dominic, 262 AD2d 373,374 [1999]). Furthermore, under the circumstances of this case, the injured plaintiff's estimatethat the driver was traveling at "[m]aybe [*2]30 miles an hour"was speculative (see Batts v Page,51 AD3d 833 [2008]; Meliarenne vPrisco, 9 AD3d 353 [2004]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Prudenti, P.J., Skelos, Balkin and Sgroi, JJ., concur.