DALE GELSTER PLAINTIFF RESPONDENT v. MARIA JAOUDE DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.   Defendant met her initial burden by establishing that plaintiff, a pedestrian, unexpectedly darted into the path of her vehicle (see Jellal v. Brown, 37 AD3d 179;  Sheppeard v. Murci, 306 A.D.2d 268;  Ash v. McNamara, 288 A.D.2d 956, lv denied 97 N.Y.2d 612).   In opposition to the motion, however, plaintiff raised a triable issue of fact whether defendant was speeding at the time of the accident (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   Contrary to defendant's contention, the deposition testimony of a non-party witness regarding defendant's speed was not so inconsistent or speculative as to render it insufficient to defeat the motion (cf.  Sheppeard, 306 A.D.2d 268;  Wolf v. We Transp., 274 A.D.2d 514).

Patricia L. Morgan

Clerk of the Court