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DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this vehicle-pedestrian traffic accident case should not have been granted. Plaintiff demonstrated she suffered a serious injury within the meaning of the Insurance Law (fractures in her foot). And defendant did not demonstrate plaintiff’s negligence was the sole proximate cause of the accident:

Plaintiff commenced this negligence action seeking damages for injuries that she sustained when a vehicle operated by defendant struck her foot while she was walking her bicycle on the street beneath an overpass. We agree with plaintiff, as limited by her brief, that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and denying that part of plaintiff’s cross motion for partial summary judgment on the issue of serious injury.

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every reasonable inference  … , we conclude that defendant failed to meet his initial burden on his motion of establishing as a matter of law that plaintiff’s negligence was the sole proximate cause of the accident … . Defendant’s own submissions raise triable issues of fact, including whether he violated his ” common-law duty to see that which he should have seen [as a driver] through the proper use of his senses’ ” … and his statutory duty to “exercise due care to avoid colliding with any bicyclist[ or] pedestrian” (Vehicle and Traffic Law § 1146 [a]).

Finally, it is uncontested that plaintiff established as a matter of law on her cross motion that she sustained fractures in her foot as a result of the accident and, therefore, she is entitled to partial summary judgment on the issue of serious injury (see Insurance Law § 5102 [d]). Luttrell v Vega, 2018 NY Slip Op 04468, Fourth Dept 6-15-18

​NEGLIGENCE (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/EVIDENCE (NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/INSURANCE LAW (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/SERIOUS INJURY (TRAFFIC ACCIDENTS, SERIOUS INJURY, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, (DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT MAY HAVE VIOLATED THE DUTY TO SEE WHAT SHOULD HAVE BEEN SEEN, AND PLAINTIFF’S FRACTURED FOOT CONSTITUTED A SERIOUS INJURY AS A MATTER OF LAW (FOURTH DEPT))

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