REID v. MIGUEL (2007)

In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Satterfield, J.), entered August 2, 2006, which, upon an order of the same court dated June 19, 2006, granting the defendants' motion for summary judgment, dismissed the complaint.

ORDERED that on the court's own motion, the notice of appeal from the order is deemed a notice of appeal from the judgment (see CPLR 5512[a] );  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

By the uncontroverted testimony of the defendant Soraya M. Miguel (hereinafter the defendant driver) and the infant plaintiff Keyante Reid (hereinafter the infant plaintiff) that the infant plaintiff ran into the street, mid-block, thereby resulting in the accident involving the infant plaintiff and the defendant driver's oncoming vehicle, the defendants established their prima facie entitlement to judgment as a matter of law on the issue of liability (see Ruocco v. Mulhall, 281 A.D.2d 406, 721 N.Y.S.2d 286;  Garner v. Fox, 265 A.D.2d 525, 696 N.Y.S.2d 868;  Vehicle and Traffic Law §§ 1152[a] and 1151[b] ).

In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendant driver exercised due care to avoid the subject accident (see Odumbo v. Perera, 27 A.D.3d 709, 813 N.Y.S.2d 462;  Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354;  Breslin v. Rudden, 291 A.D.2d 471, 472, 738 N.Y.S.2d 674;  Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286;  Vehicle and Traffic Law § 1146).   Therefore, the defendants were entitled to summary judgment dismissing the complaint.