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You are here: Home1 / Evidence2 / PEDESTRIAN PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE AS SHE WAS...
Evidence, Negligence

PEDESTRIAN PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE AS SHE WAS CROSSING THE ENTRANCE TO A PARKING LOT; DEFENDANT TESTIFIED HE NEVER SAW THE PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND HER MOTION TO DISMISS DEFENDANT’S AFFIRMATIVE DEFENSE ALLEGING PLAINTIFF WAS COMPARATIVELY NEGLIGENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted, and defendant’s affirmative defense alleged plaintiff was comparatively negligent should have been dismissed. Plaintiff was halfway through the entrance to a parking lot when defendant turned to enter the parking lot:

The injured plaintiff testified at her deposition, a transcript of which was also submitted in support of the plaintiffs’ motion, that she had been walking on the sidewalk along Ardsley Road. She intended to cross the entrance to the parking lot to continue walking on the sidewalk along Ardsley Road. She testified that, before attempting to cross the entrance to the lot, she stopped and looked in both directions to check for approaching vehicles, and that she did not see any vehicles before she stepped into the entrance to the lot.

The plaintiffs also submitted a transcript of the deposition testimony of a nonparty witness who testified that, just before impact, he observed the injured plaintiff turn her body to face the defendants’ vehicle and put her hands up in front of her. He then saw the vehicle strike the injured plaintiff and launch her into the air. The photographs, in conjunction with the testimony of the defendant driver and the nonparty witness, demonstrated that the injured plaintiff was struck after she had already walked more than halfway across the entrance to the parking lot.

A driver is bound to see what is there to be seen with the proper use of his or her senses … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that the defendant driver never saw the injured plaintiff before striking her … . Higashi v M&R Scarsdale Rest., LLC, 2019 NY Slip Op 07240, Second Dept 10-9-19

 

October 9, 2019
Tags: Second Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2019-10-09 18:55:332020-01-24 05:52:22PEDESTRIAN PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE AS SHE WAS CROSSING THE ENTRANCE TO A PARKING LOT; DEFENDANT TESTIFIED HE NEVER SAW THE PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND HER MOTION TO DISMISS DEFENDANT’S AFFIRMATIVE DEFENSE ALLEGING PLAINTIFF WAS COMPARATIVELY NEGLIGENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
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NISSAN, AS THE LESSOR OF THE VEHICLE, WAS ENTITLED TO DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE PURSUANT TO THE GRAVES AMENDMENT, THE COMPLAINT ALLEGED NEGLIGENT MAINTENANCE OR MECHANICAL MALFUNCTION, NISSAN DEFENDANTS DEMONSTRATED THEY DO NOT INSPECT, REPAIR, MAINTAIN OR SERVICE THE VEHICLES THEY LEASE (SECOND DEPT).
Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted
ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).
ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT).
NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.
Vicious Propensities Not Demonstrated, Summary Judgment Properly Awarded to Defendants
Action Dismissed Because Letters of Administration Had Not Been Issued to Plaintiff at the Time the Action Was Commenced
THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF CPLR 3216 BECAUSE ISSUE WAS NEVER JOINED IN THIS FORECLOSURE ACTION; THE ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO PROSECUTE (SECOND DEPT).

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