| Perez v City of New York |
| 2013 NY Slip Op 01389 [104 AD3d 661] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Juan A. Perez, Respondent, v City of New York etal., Appellants. |
—[*1] Alexander Bespechny, Brooklyn, N.Y. (Louis A. Badolato of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (F. Rivera, J.), dated January 27, 2012, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is granted.
The infant plaintiff was struck by a vehicle operated by the defendant Joel E. Gastonand owned by the defendant Hoyt Transportation (hereinafter Hoyt), when the infantplaintiff was attempting to cross the street in the vicinity of his school. The infantplaintiff, by his mother, thereafter commenced this action against Gaston, Hoyt, the Cityof New York, and the New York City Department of Education to recover damages forpersonal injuries. The defendants moved for summary judgment dismissing thecomplaint. The Supreme Court denied the motion, concluding that it could not considerthe General Municipal Law § 50-h hearing and deposition testimony of the infantplaintiff, who was over 10 years old at the time of the testimony, because a hearing todetermine whether the infant plaintiff had testimonial capacity had not been held prior totaking the infant plaintiff's testimony.
The Supreme Court erred in declining to consider the infant plaintiff's depositiontestimony for the reason it stated. None of the parties challenged the infant plaintiff'scapacity to testify. Under the circumstances, neither the infant plaintiff's age nor hisresponses to the questioning necessitated a hearing.
The defendants met their burden of demonstrating their prima facie entitlement tojudgment as a matter of law by demonstrating that the injured plaintiff darted out frombetween parked vehicles, away from two nearby crosswalks at which crossing guards hadbeen stationed, and directly into the path of the vehicle operated by Gaston, leavingGaston unable to avoid contact with the infant plaintiff (see Jahangir v Logan Bus Co.,Inc., 89 AD3d 1064 [2011]; Afghani v Metropolitan Suburban Bus Auth., 45 AD3d511 [2007]; Ledbetter vJohnson, 27 AD3d 698 [2006]; Mancia v Metropolitan Tr. [*2]Auth. Long Is. Bus, 14 AD3d 665 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact (see DeJesus v Alba, 63 AD3d460 [2009], affd 14 NY3d 860 [2010]; cf. St. Andrew v O'Brien, 45 AD3d 1024 [2007]). Theplaintiff's objection to consideration of the General Municipal Law § 50-h hearingand deposition testimony on the ground that the transcripts are not in admissible form isnot properly before this Court, since it is raised for the first time on appeal (see Marinkovic v IPC Intl. ofIll., 95 AD3d 839 [2012]; Lowe v Meacham Child Care & Learning Ctr., Inc., 74 AD3d1029 [2010]; Ross vGidwani, 47 AD3d 912 [2008]).
Accordingly, the Supreme Court should have granted the defendants' motion forsummary judgment dismissing the complaint. Skelos, J.P., Leventhal, Hall and Sgroi, JJ.,concur.