JOYCE SAUTER FILED ON BEHALF OF CLAUDETTE SAUTER PLAINTIFF APPELLANT RESPONDENT v. PETER CALABRETTA DEFENDANT RESPONDENT APPELLANT (2011)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Onondaga County (James P. Murphy, J.), entered March 22, 2011 in a personal injury action.   The order denied plaintiff's motion for partial summary judgment and denied defendant's cross motion for summary judgment.

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

Memorandum:  Plaintiff commenced this action on behalf of her daughter seeking damages for injuries her daughter sustained when she was struck by a vehicle operated by defendant while walking on the shoulder of the road.   Plaintiff appeals and defendant cross-appeals from an order denying plaintiff's motion for partial summary judgment on liability, i.e., the issues of negligence and serious injury (see generally Ruzycki v. Baker, 301 A.D.2d 48, 51–52), and denying defendant's cross motion for summary judgment dismissing the complaint.   We affirm.

Contrary to defendant's contention on his cross appeal, we conclude that the court properly denied his cross motion inasmuch as he “failed to submit evidence sufficient to establish, prima facie, that the ․ alleged negligence [of plaintiff's daughter] was the sole proximate cause of the accident, that he kept a proper lookout, and that his alleged negligence, if any, did not contribute to the happening of the accident” (Topalis v. Zwolski, 76 AD3d 524, 525;  see Ryan v. Budget Rent a Car, 37 AD3d 698).

Frances E. Cafarell

Clerk of the Court