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PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ (truck owner’s and driver’s) motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was injured by the rear portion of a tractor trailer which had completed 85% of a right turn:

… [T]he plaintiff allegedly was walking on a sidewalk … . After she stepped off the sidewalk onto the street, her right foot came into contact with the rear of a tractor-trailer that was making a right turn. … The plaintiff allegedly did not see the tractor-trailer prior to the impact. …

… [T]he plaintiff was the sole proximate cause of the accident … . The evidence … established that the plaintiff failed to see what was there to be seen and walked into the path of the rear of the tractor-trailer. Faulknor v Gina’s Trucking, Inc., 2018 NY Slip Op 01045, Second Dept 2-14-18

NEGLIGENCE (PEDESTRIANS, TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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THE DEFENDANT’S CONCLUSORY AFFIDAVIT BLAMING THE DEFAULT JUDGMENT ON HIS PRIOR ATTORNEY WAS NOT A SUFFICIENT BASIS FOR VACATING THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).
THE EXCESS INSURANCE CARRIER WAS NOT BARRED FROM RECOVERY OF THE AMOUNT IT CONTRIBUTED TO THE SETTLEMENT OF A PERSONAL INJURY ACTION BY THE VOLUNTARY PAYMENT DOCTRINE; THE EXCESS INSURANCE CARRIER’S BREACH-OF-THE-COVENANT-OF-GOOD-FAITH ACTION AGAINST THE PRIMARY CARRIER PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).
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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE IN THIS FORECLOSURE PROCEEDING, THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF BANK’S PRIOR FORECLOSURE ACTION WAS DISMISSED FOR FAILURE TO DEMONSTRATE STANDING; RES JUDICATA DOES NOT PRECLUDE THE INSTANT FORECLOSURE ACTION BECAUSE THE PRIOR ACTION WAS NOT DISMISSED ON THE MERITS; COLLATERAL ESTOPPEL DOES NOT PRECLUDE THE INSTANT ACTION BECAUSE THE STANDING ISSUE IS NOT THE SAME (SECOND DEPT).
AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.
DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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