| France Herly Bien-Aime v Clare |
| 2015 NY Slip Op 00713 [124 AD3d 814] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| France Herly Bien-Aime, et al.,Appellants, v Eston G. Clare, Respondent. |
Appell & Parrinelli, New York, N.Y. (John J. Appell and Louis A. Badolato ofcounsel), for appellants.
Connors & Connors, P.C., Staten Island, N.Y. (Michael P. DeCarlo andChristopher J. Camera of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Kings County (Dabiri, J.), dated January 2, 2014, whichdenied their cross motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law and on the facts, with costs, and theplaintiffs' cross motion for summary judgment on the issue of liability is granted.
The injured plaintiff was struck by a vehicle driven by the defendant as she crossedBedford Avenue, at its intersection with Parkside Avenue, in Brooklyn. The injuredplaintiff, and her husband suing derivatively, commenced this action against thedefendant to recover damages for the personal injuries she allegedly sustained. Theplaintiffs subsequently cross-moved for summary judgment on the issue of liability. TheSupreme Court denied the plaintiffs' cross motion.
"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, 737[1993]). Once the movant establishes his or her entitlement to judgment as a matter oflaw, the burden shifts to the opposing party to submit sufficient evidence to raise a triableissue of fact as to the moving party's comparative fault (see Ramos v Bartis, 112AD3d at 804; Lu Yuan Yang vHowsal Cab Corp., 106 AD3d 1055, 1056 [2013]).
Here, the plaintiffs established their prima facie entitlement to judgment as a matterof law on the issue of liability by demonstrating that the defendant negligently failed toyield the right-of-way to the injured plaintiff, and that the injured plaintiff was free fromcomparative fault (see Traffic Rules and Regs of City of NY [34 RCNY]§ 4-03 [a] [1] [i]; [c] [1], [2]; Ramos v Bartis, 112 AD3d at 804; Castro v New York City Tr.Auth., 95 AD3d 1056, 1057 [2012]; Qamar v Kanarek, 82 AD3d 860, 861 [2011]). In supportof their motion, the plaintiffs submitted the transcript of the injured plaintiff's deposition,during which she testified that she stopped at the intersection, observed traffic and thepedestrian "WALK" signal in her favor before entering the street, and crossed Bedford[*2]Avenue within the crosswalk while the pedestriancrossing signal remained in her favor. She also testified that she was more than halfwayacross the street, closer to the other side and still within the crosswalk, when she wasstruck on the right side by the defendant's vehicle as it turned left into the intersection,causing her to fall to the ground. This testimony demonstrated that the injured plaintiffentered the intersection after exercising due care (see Brown v Mackiewicz, 120 AD3d 1172 [2014]). Theplaintiffs additionally submitted the transcript of the defendant's deposition testimony.The defendant testified that he did not remember looking for pedestrians when he wasstopped on Parkside Avenue before making the left turn onto Bedford Avenue, he didnot see the injured plaintiff until he saw her on top of his vehicle's hood even thoughthere was nothing obstructing his view of the roadway, and, after the impact, the injuredplaintiff slid off the front of his vehicle to the ground. Although the defendant latertestified that the injured plaintiff was not within the crosswalk at the time of impact, thisclaim was speculative in view of his admission that he did not see the injured plaintiffuntil the impact had already occurred (see Ducie v Ippolito, 95 AD3d 1067, 1068 [2012]; Czarnecki v Corso, 81 AD3d774, 775 [2011]).
In opposition, the defendant failed to raise a triable issue of fact as to whether theinjured plaintiff was comparatively at fault in the happening of the accident (see Berrios-Lemus v Village ofSpring Val., 122 AD3d 650, 651 [2014]; Ramos v Bartis, 112 AD3d at805).
Accordingly, the Supreme Court should have granted the plaintiffs' cross motion forsummary judgment on the issue of liability. Mastro, J.P., Austin, Maltese and Barros, JJ.,concur.