SHEPPEARD v. MURCI (2003)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 15, 2002, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant established his prima facie entitlement to judgment as a matter of law by providing sufficient evidence that the infant plaintiff darted out from behind vehicles stopped in traffic, directly into the path of the defendant's vehicle, leaving the defendant unable to avoid contact (see Sae Hyun Kim v. Mirisis, 286 A.D.2d 761, 762, 730 N.Y.S.2d 353;  Johnson v. Lovett, 285 A.D.2d 627, 728 N.Y.S.2d 753;  Carrasco v. Monteforte, 266 A.D.2d 330, 331, 698 N.Y.S.2d 326).   In response, the plaintiffs failed to present sufficient evidence to raise a triable issue of fact.   Contrary to the plaintiffs' contention, they failed to present evidence that the defendant operated his vehicle in a negligent manner (see Miller v. Sisters of Order of St. Dominic, 262 A.D.2d 373, 374, 691 N.Y.S.2d 168;  Brown v. City of New York, 237 A.D.2d 398, 655 N.Y.S.2d 567), and any assertion that the defendant was driving “too fast” was unsubstantiated and wholly subjective (see Wolf v. We Transp., 274 A.D.2d 514, 711 N.Y.S.2d 484).   Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.