MANESSIS v. Lawrence John Gunther, defendant-respondent. (2006)

In an action to recover damages for personal injuries and wrongful death, the defendants Chang-Nam Song and Soo-Hyang Song appeal from an order of the Supreme Court, Queens County (Kelly, J.), dated May 18, 2005, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

 The defendants Chang-Nam Song and Soo-Hyang Song demonstrated their prima facie entitlement to judgment as a matter of law.   In opposition, the plaintiff raised a triable issue of fact as to whether the defendant Soo-Hyang Song should have been able to observe the decedent lying on the subject roadway before her vehicle ran over him.   A motorist is negligent if he or she fails to see that which, under the circumstances, he or she should have seen through the proper use of his or her senses (see Lupowitz v. Fogarty, 295 A.D.2d 576, 744 N.Y.S.2d 480;  Breslin v. Rudden, 291 A.D.2d 471, 738 N.Y.S.2d 674;   Stiles v. County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325;  Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286;  see also Weigand v. United Traction Co., 221 N.Y. 39, 116 N.E. 345).   Accordingly, the Supreme Court properly denied the motion for summary judgment.