MARTIN v. GELCO CORPORATION (2023)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about October 14, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for summary judgment on liability, unanimously affirmed, without costs.

Plaintiffs established prima facie entitlement to summary judgment on liability by submitting plaintiffs Cornell Martin and A.D.’s deposition testimony, defendant Alberto O'Brien’s deposition testimony, and the certified police accident report, all of which demonstrated Martin and A.D. were within an unmarked crosswalk in the roadway when O'Brien failed to yield the right-of-way and hit them while making a left turn onto the roadway (see Vehicle and Traffic Law § 1151(a);  34 RCNY 4–01(b) [defining “Crosswalk” including “Unmarked crosswalk”];  Curl v. Schiffman, 183 A.D.3d 415, 415, 121 N.Y.S.3d 601 [1st Dept. 2020];  Torres v. Werner Bus Lines, Inc., 157 A.D.3d 624, 624–625, 67 N.Y.S.3d 635 [1st Dept. 2018]).  Moreover, Supreme Court properly applied the statement against interest rule in relying on O'Brien’s statement to police immediately after the accident and included in the police report, a business record (see Bracco v. MABSTOA, 117 A.D.2d 273, 277, 502 N.Y.S.2d 158 [1st Dept. 1986]), in which O'Brien stated that he did not see Martin and A.D. until he felt the impact (see Garzon–Victoria v. Okolo, 116 A.D.3d 558, 558, 983 N.Y.S.2d 718 [1st Dept. 2014]).

In opposition, defendants failed to raise a question of fact.  Their claim that Martin staged the accident is refuted by the record (see Curl v. Schiffman, 183 A.D.3d at 416, 121 N.Y.S.3d 601;  see also Estate of Mirjani v. DeVito, 135 A.D.3d 616, 617, 24 N.Y.S.3d 263 [1st Dept. 2016]).

We have considered defendants’ remaining arguments and find them unavailing.