| Balliet v North Amityville Fire Dept. |
| 2015 NY Slip Op 07943 [133 AD3d 559] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1](November 4, 2015)
| Brett J. Balliet, Respondent, v North AmityvilleFire Department et al., Defendants, and Taqiyya M. Jenkins et al.,Appellants. |
Nicholas Goodman & Associates, PLLC, New York, N.Y. (H. NicholasGoodman and Brent M. Reitter of counsel), for appellants.
Stanton, Guzman & Miller, LLP, Franklin Square, N.Y. (Stacey R. Guzman ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants Taqiyya M.Jenkins and LL Cool J., Inc., appeal from so much of an order of the Supreme Court,Suffolk County (Pitts, J.), dated September 5, 2014, as denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted againstthem.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendants Taqiyya M. Jenkins and LL Cool J., Inc., for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against themis granted.
The plaintiff allegedly was crossing the street in violation of section 1152 (a) of theVehicle and Traffic Law, when he was struck by a vehicle operated by the defendantTaqiyya M. Jenkins and owned by the defendant LL Cool J., Inc. (hereinafter togetherthe Jenkins defendants). In order to cross the roadway, the plaintiff had to cross twoeastbound lanes, two westbound lanes, and one center turning lane. The plaintiff walkedin between stopped vehicles to cross the two eastbound lanes. The plaintiff was struck bythe Jenkins defendants' vehicle, which was traveling eastbound, soon after he entered thecenter turning lane.
The plaintiff thereafter commenced this action against the Jenkins defendants, amongothers. The Jenkins defendants moved for summary judgment dismissing the complaintand all cross claims insofar as asserted against them. The plaintiff opposed the motion,while the remaining defendants submitted no opposition. The Supreme Court denied themotion.
Under the circumstances presented here, the Jenkins defendants established theirentitlement to judgment as a matter of law by demonstrating that the conduct of theplaintiff in crossing the street at a location other than at an intersection, while emergingfrom between stopped cars, was the sole proximate cause of the accident, and thatJenkins was free from fault despite the plaintiff's allegation that she failed to avoid acollision with the plaintiff (seeGalo v Cunningham, 106 AD3d 865, 866 [2013]; Rodriguez v Catalano, 96AD3d 821, 822 [2012]; Rosa v Scheiber, 89 AD3d 827, 828 [2011]; Braxton v Jennings, 63 AD3d772 [2009]; Sheppeard v Murci, 306 AD2d 268, 269 [2003]; Brown vCity of New York, 237 AD2d 398 [1997]). In opposition, the plaintiff failed to raisea triable issue of fact (see Galo v [*2]Cunningham, 106 AD3d at 866; Rosa vScheiber, 89 AD3d at 828; Sheppeard v Murci, 306 AD2d at 269; Brownv City of New York, 237 AD2d at 398-399), and the remaining defendants did notoppose the motion. Accordingly, the Supreme Court should have granted the Jenkinsdefendants' motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them.
In light of our determination, it is not necessary to address the merit of the Jenkinsdefendants' remaining contention. Dillon, J.P., Sgroi, Cohen and LaSalle, JJ., concur.[Prior Case History: 2014 NY Slip Op 32358(U).]