BEY v. ROSADO (2021)

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about May 6, 2020, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and summary judgment denied with leave to renew following plaintiff's deposition and other discovery.

Plaintiff alleges that after crossing Pearl Street at the intersection with Whitehall Street he was struck from behind by defendants' box truck, while he was on the curb/lip of the sidewalk.  According to the affidavit of the driver, defendant Rosado, plaintiff was distracted by talking on a cell phone, and walked into the side of the truck while it was already making a right turn.

While plaintiff was not required to demonstrate the absence of comparative negligence on his part, his motion was premature in that defendants did not have the opportunity to depose him (see Figueroa v. City of New York, 126 A.D.3d 438, 439, 5 N.Y.S.3d 62 [1st Dept. 2015]).