McFADDEN v. [And a Third-Party Action]. (2007)

Supreme Court, Appellate Division, First Department, New York.

Leslie McFADDEN, Plaintiff-Appellant, v. Mercedes BRUNO, et al., Defendants-Respondents. [And a Third-Party Action].

Decided: February 06, 2007

ANDRIAS, J.P., MARLOW, WILLIAMS, BUCKLEY, MALONE, JJ.

Adam D. White, New York, for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Kathleen D. Foley of counsel), for Mercedes Bruno, respondent. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Joseph A.H. McGovern of counsel), for Honda Lease Trust, respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 5, 2006, which denied plaintiff's motion for partial summary judgment as to liability, unanimously affirmed, without costs.

Plaintiff was injured when she rode her bicycle into the door of a parked car after the individual defendant had opened it in the cyclist's path while exiting. Plaintiff's contradictory statements regarding the speed at which she was traveling, as well as the conflicting testimony regarding how far the door was open when she rode into it, raise triable issues regarding credibility and comparative fault that are not appropriate for resolution on a motion for summary judgment (see Bruscella v. Abbondondolo, 270 A.D.2d 443, 705 N.Y.S.2d 279 [2000] ).

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