DEFENDANT DRIVER STRUCK PLAINTIFF PEDESTRIAN AS HE ATTEMPTED TO CROSS THE ROAD; DEFENDANT DID NOT DEMONSTRATE SHE COULD NOT HAVE SEEN PLAINTIFF AND COULD NOT HAVE AVOIDED STRIKING PLAINTIFF; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined defendant driver did not demonstrate she could not have seen plaintiff pedestrian and could not have avoided striking plaintiff as he attempted to cross the road:
… [D]efendant, “as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident” … . Defendant failed, however, to meet her initial burden with respect to either her negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant’s evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant’s submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant’s vehicle.
We agree with plaintiff that defendant’s own evidence raises triable issues of fact whether she ” ‘could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident’ ” (Uhteg, 200 AD3d at 1697). In Uhteg, as here, “the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run” … . Moreover, there is no evidence that defendant’s view of the oncoming lanes or median area was obscured … . Koff v Lawson, 2026 NY Slip Op 04582, Fourth Dept 7-24-26
Practice Point: Consult this decision for a discussion of what a defendant must demonstrate for summary judgment where defendant driver strikes plaintiff pedestrian as plaintiff attempted to cross the road.