You are here: / / STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS...
,

STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS TO SEE IS NEGLIGENCE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT TO BE CONSIDERED; PLAINTIFF PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian-vehicle traffic accident case should have been granted. Striking a pedestrian is a violation of the Vehicle and Traffic Law which is negligence per se. In addition a driver is expected to see what there is to be seen. Defendant was in the middle lane of traffic when plaintiff was struck:

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of evidence that established the defendant driver was negligent in failing to see what there was to be seen and in failing to exercise due care in avoiding the collision with the plaintiff (see Vehicle and Traffic Law § 1146 [a] …).. By the defendant driver’s own admissions at his deposition, he never saw the plaintiff before the defendants’ vehicle struck the plaintiff; in fact, upon impact, the defendant driver thought “maybe a tire or something . . . hit [the defendants’] car,” and when he first saw the plaintiff, the plaintiff was lying on the pavement. Moreover, the record demonstrates that the road was flat, the weather was clear, and visibility was good. Further, the defendants’ vehicle was traveling in the middle lane of three southbound lanes, when it made contact with the plaintiff who was crossing from the right side of the road, “giving the defendant driver ample time to notice plaintiff crossing the street” … . Beityaaghoob v Klein, 2023 NY Slip Op 02488, Second Dept 5-10-23

Practice Point: Under the facts in this pedestrian-vehicle traffic accident case, striking plaintiff pedestrian was negligence per se (a violation of the Vehicle and Traffic Law) and defendant’s acknowledged failure to see the plaintiff constituted negligence. Any comparative negligence on plaintiff’s part is not to be considered. Plaintiff’s motion for summary judgment should have been granted.

 

You might also like
THE ALLEGATIONS WERE SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL TO REACH DEFENDANT LLC MEMBER PERSONALLY FOR BREACH OF THE HOUSING MERCHANT IMPLIED WARRANTY OBLIGATIONS; AND DEFENDANT COULD BE HELD PERSONALLY LIABLE FOR NEGLIGENT REPAIRS UNDER A HOME RENOVATION CONTRACT (SECOND DEPT).
ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT).
A DRIVER WHO HAS THE RIGHT-OF-WAY IS ENTITLED TO ANTICIPATE OTHER DRIVERS WILL OBEY THE TRAFFIC LAWS REQUIRING THEM TO YIELD; HERE DEFENDANT ENTERED AN INTERSECTION WITH A GREEN LIGHT AND PLAINTIFF MADE A LEFT TURN IN FRONT OF HIM; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, TERMINATED THE GUARDIANSHIP OF AN INCAPACITATED PERSON WITHOUT HOLDING A HEARING (SECOND DEPT).
PHOTOGRAPHS OF UNEVEN SIDEWALK WHERE PLAINTIFF FELL WERE PROPERLY AUTHENTICATED AND SHOULD NOT HAVE BEEN EXCLUDED, NEW TRIAL ORDERED (SECOND DEPT).
IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.
FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS FALSE ARREST AND FALSE IMPRISONMENT ACTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

UNDER THE 2022 AMENDMENT TO CPLR 213, A BANK WHICH HAS STARTED A FORECLOSURE... THE FRANCHISOR, TOYOTA, DID NOT EXERCISE CONTROL OVER THE FRANCHISEE’S,...