FORTSON v. THOMPSON (2025)

Order, Supreme Court, Bronx County (Patsy Gouldborne, J.), entered January 14, 2025, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendants partial summary judgment on the issue of plaintiff's comparative fault, and otherwise affirmed, without costs.

Plaintiff was struck by a garbage truck owned by defendant Action Carting Environmental Services, Inc., and driven by defendant Junior A. Thompson, as she attempted to cross in front of the truck at an intersection shortly after the light changed to green in the driver's favor.  Supreme Court properly found triable issues of fact as to whether defendants were negligent, based on Thompson's deposition testimony that he should have checked his mirrors before proceeding into the intersection and based on the conflicting expert reports about whether Thompson could have seen plaintiff prior to the accident and whether he operated the garbage truck in an attentive and reasonable manner.

However, as conceded by plaintiff, defendants should have been granted partial summary judgment on the issue of plaintiff's comparative fault.  The uncontroverted facts were that plaintiff was walking on the roadway, crossing the street outside of a crosswalk, and failed to yield the right of way to defendants' truck (see Leathers v. Approved Oil Co. of Brooklyn, Inc., 212 A.D.3d 482, 482, 179 N.Y.S.3d 904 [1st Dept. 2023]).  The extent to which the parties were comparatively negligent will be determined at trial (see Rodriguez v. City of New York, 31 N.Y.3d 312, 323–324, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).

We have considered the remaining contentions and find them unavailing.