| Galo v Cunningham |
| 2013 NY Slip Op 03452 [106 AD3d 865] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Danilo Galo, Respondent, v John M. Cunningham,Appellant. |
—[*1] Paul R. Pepper, LLC, Jericho, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Nassau County (Galasso, J.), entered August 13, 2012,which denied his motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
The plaintiff testified at a deposition that, on the afternoon of April 8, 2008, heattempted to cross Fulton Avenue in Hempstead, a four-lane east-west avenue withparking lanes on either side, in the middle of the block, approximately 200 feet west ofits intersection with Main Street. While he was standing in the parking lane on the southside of the avenue, the plaintiff first looked right, then left, then straight ahead. Theplaintiff further testified at his deposition that he started to run across when the traffic inboth eastbound lanes had just passed him by 20 feet, traveling away from him, and thetraffic coming toward him in the westbound lanes was farther away, at a distance hecould not calculate. The plaintiff crossed the two eastbound lanes and did not see thedefendant's vehicle in the left westbound lane before it struck him. According to thedefendant's deposition testimony, the defendant was traveling in the left westbound lanein fairly heavy traffic at about 15 to 20 miles per hour, having just started moving afterstopping for a red light at the intersection of Fulton and Main. There was oncomingtraffic in the eastbound lanes. The defendant further testified at his deposition that alarge, white box truck in the eastbound lane closest to the defendant on the other side ofthe double yellow line was about to pass him, and the two vehicles were almost parallelwith each other, when the plaintiff suddenly ran out from behind the truck into thedefendant's lane of travel. The plaintiff was about half a car length away when thedefendant first saw him. The defendant asserted that he immediately slammed on thebrakes but was unable to avoid hitting the plaintiff.
The defendant established his prima facie entitlement to judgment as a matter of lawwith evidence that the plaintiff ran into the middle of the road outside of a crosswalk andinto the defendant's lane of travel when the defendant's view of the plaintiff wasobstructed, such that the defendant was unable to avoid contact with the plaintiff(see Vehicle and Traffic Law § 1152 [a]; [*2]Rodriguez v Catalano, 96 AD3d 821 [2012]; Rosa v Scheiber, 89 AD3d827 [2011]; Braxton vJennings, 63 AD3d 772 [2009]; Brown v City of New York, 237 AD2d398 [1997]). In opposition, the plaintiff failed to raise a triable issue of fact as to whetherthe defendant operated his vehicle in a negligent manner (see Rosa v Scheiber,89 AD3d at 828; Sheppeard v Murci, 306 AD2d 268 [2003]; Brown v City ofNew York, 237 AD2d at 398-399; Vehicle and Traffic Law § 1146 [a]).Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Eng, P.J., Rivera, Angiolillo and Balkin,JJ., concur.