| Brown v Mackiewicz |
| 2014 NY Slip Op 06046 [120 AD3d 1172] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Priscilla Brown, Appellant, v ElizabethMackiewicz et al., Respondents. |
Block O'Toole & Murphy, LLP, New York, N.Y. (Scott Occhiogrosso ofcounsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andMarta Ross of counsel; Lauren Di Giovanni on the brief), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.),dated October 2, 2013, as denied her motion for summary judgment on the issue ofliability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the plaintiff's motion for summary judgment on the issue of liability is granted.
"To prevail on a motion for summary judgment on the issue of liability in an actionalleging negligence, a plaintiff has the burden of establishing, prima facie, not only thatthe defendant was negligent, but that the plaintiff was free from comparative fault, sincethere can be more than one proximate cause of an accident" (Ramos v Bartis, 112 AD3d804, 804 [2013] [citations omitted]; see Thoma v Ronai, 82 NY2d 736[1993]). "Where the movant has established his or her entitlement to judgment as amatter of law, the opposing party may defeat the motion for summary judgment bysubmitting sufficient evidence to raise a triable issue of fact as to the moving party'scomparative fault" (Ramos v Bartis, 112 AD3d at 804).
The plaintiff established her prima facie entitlement to judgment as a matter of lawon the issue of liability by demonstrating, through her deposition testimony, that sheentered the crosswalk at the subject intersection after exercising reasonable care bylooking in both directions for approaching traffic, was walking within the crosswalk withthe pedestrian crossing signal in her favor, and was at least half way across the streetwhen she was struck by an ambulance operated by the defendant driver, ElizabethMackiewicz, who failed to yield the right of way (see Traffic Rules and Regs ofCity of NY [34 RCNY] § 4-03 [a] [1] [i]; [c] [1], [2]; Ramos vBartis, 112 AD3d at 804; Moreira v M.K. Travel & Transp., Inc., 106 AD3d965, 966 [2013]; Castro vNew York City Tr. Auth., 95 AD3d 1056, 1057 [2012]; Buchinger v Jazz LeasingCorp., 95 AD3d 1053, 1053 [2012]; Kusz v New York City Tr. Auth., 88 AD3d 768[2011]).
In opposition, the defendants failed to raise a triable issue of fact. Contrary to thedefendants' contentions, Mackiewicz's deposition testimony that the ambulance wasstopped at a red light for 30 to 45 seconds prior to making the left turn into theintersection does not raise a triable [*2]issue of fact as towhether the plaintiff did not exercise due care by failing to see the ambulance before sheentered the crosswalk, especially since Mackiewicz testified that, while the ambulancewas stopped, her view of the intersection was obstructed by mounds of snow. Moreover,the defendants did not demonstrate that any failure on the part of the plaintiff to observetheir vehicle stopped at a red light contributed to or caused the accident. The defendantsalso failed to demonstrate that the plaintiff was intoxicated (see Burkhard v SunsetCruises, 191 AD2d 669 [1993]; Senn v Scudieri, 165 AD2d 346, 350[1991]), or that intoxication contributed to or caused this accident (see Westchester Med. Ctr. vProgressive Cas. Ins. Co., 51 AD3d 1014, 1018 [2008]; Martin v City ofNew York, 275 AD2d 351, 353 [2000]).
The defendants' remaining contention is without merit.
Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the issue of liability. Skelos, J.P., Hall, Duffy and Barros, JJ.,concur.