You are here: / / ALTHOUGH PLAINTIFF PEDESTRIAN WAS STRUCK CROSSING THE STREET WHERE THERE...
,

ALTHOUGH PLAINTIFF PEDESTRIAN WAS STRUCK CROSSING THE STREET WHERE THERE WAS NO CROSSWALK, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT SHE SHOULD HAVE SEEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s summary judgment motion in this pedestrian-car accident case should not have been granted. Although plaintiff pedestrian violated the Vehicle and Traffic law by crossing the street where there was no crosswalk, plaintiff raised a question of fact about whether defendant-driver failed to see what she should have seen:

The defendant established her prima facie entitlement to judgment as a matter of law by submitting evidence that, under the circumstances of this case, the plaintiff’s own conduct in crossing the roadway outside of a crosswalk was the sole proximate cause of the accident, and that the defendant was not at fault in the happening of the accident … . However, in opposition, the plaintiff raised a triable issue of fact as to whether the defendant failed to exercise due care to avoid striking the plaintiff with her vehicle by failing to see that which, through the proper use of her senses, she should have seen (see Vehicle and Traffic Law § 1146[a] …). Davis v Khalil, 2023 NY Slip Op 01659, Second Dept 3-29-23

Practice Point: Plaintiff pedestrian was struck by defendant driver crossing a road where there was no crosswalk in violation of the Vehicle and Traffic Law. However, there was a question of fact whether defendant driver failed to see what she should have seen.

 

You might also like
New York’s Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided
PETITIONER MUST EXHAUST ITS ADMINISTRATIVE REMEDIES BY APPEALING THE DENIAL OF A BUILDING PERMIT BY THE TOWN BUILDING DEPARTMENT TO THE ZONING BOARD OF APPEALS BEFORE BRINGING A COURT ACTION (SECOND DEPT).
Mother’s Petition to Relocate Should Not Have Been Denied—Analytical Criteria Described
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS’ LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT’S CONTRACT WITH THE TOWN TO MAINTAIN STREET LIGHTS DID NOT CREATE A DUTY OWED BY THE CONTRACTOR TO THE PLAINTIFF, A PEDESTRIAN STRUCK BY A CAR WHO ALLEGED A STREET LIGHT WAS NOT WORKING; THE CONTRACTOR DID NOT “LAUNCH AN INSTRUMENT OF HARM;” IT MERELY FAILED “TO ACT AS AN INSTRUMENT OF GOOD” WHICH DOES NOT CREATE A DUTY TO A NONPARTY (SECOND DEPT).
THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).
Court Has No Inherent Power to Vacate a Notice of Lien Which Is Valid on Its Face—Validity of Lien Must Be Determined in Foreclosure Proceeding
PROVISION IN MORTGAGE WHICH GAVE BORROWER RIGHT TO DE-ACCELERATE THE DEBT DID NOT PRECLUDE PLAINTIFF BANK FROM ACCELERATING THE DEBT BY FILING A SUMMONS AND COMPLAINT, FORECLOSURE ACTION TIME-BARRED (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

THE COVID EXECUTIVE ORDERS TOLLING THE STATUTES OF LIMITATIONS APPLY TO THE... PLAINTIFF WAS NOT WEARING A HARD HAT AND WAS STRUCK IN THE HEAD BY DEBRIS DURING...