| Day v MTA Bus Co. |
| 2012 NY Slip Op 02833 [94 AD3d 940] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Shirley Day, Respondent, v MTA Bus Company et al.,Appellants. |
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Peter P. Traub, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Pineda-Kirwan, J.), dated July 22, 2011, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied.
In support of her motion for summary judgment on the issue of liability, the plaintiffpedestrian offered evidence that the defendant bus driver struck her while she was crossing thestreet within the crosswalk with a pedestrian traffic signal in her favor. However, the plaintifffailed to establish that she exercised due care in crossing the street (see Thoma v Ronai,82 NY2d 736, 737 [1993]). Although she testified at her deposition that she always looked leftand right while crossing the subject street, she admitted that, when she began to cross the streeton this particular occasion, she was "looking across" the street, rather than checking for trafficapproaching from her left or right. Therefore, the plaintiff failed to establish that she was freefrom comparative fault (see Yuen Lum vWallace, 70 AD3d 1013, 1014 [2010]; Gideon v Flatlands Beverage Distribs., Inc., 59 AD3d 596 [2009];Cator v Filipe, 47 AD3d 664,664-665 [2008]; Albert v Klein, 15AD3d 509, 510 [2005]; cf. Qamar vKanarek, 82 AD3d 860, 861 [2011]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911 [2009]; Benedikt v Certified Lbr. Corp., 60AD3d 798, 798 [2009]). Since the plaintiff failed to meet her prima facie burden, we neednot consider the sufficiency of the defendants' opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; MPEG LA, LLC v Audiovox Elecs. Corp., 84 AD3d 1189, 1190[2011]).
The parties' remaining contentions are without merit or need not be considered in view of theforegoing.
Accordingly, the plaintiff's motion for summary judgment on the issue of liability shouldhave been denied. Florio, J.P., Lott, Sgroi and Miller, JJ., concur.