MAZZA v. MANZELLA (2008)

In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated May 29, 2007, as denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

 The defendant made a prima facie showing of entitlement to judgment as a matter of law by presenting proof that the infant plaintiff, who was riding a motorized bicycle, exited a driveway and collided into the defendant's motor vehicle in violation of Vehicle and Traffic Law § 1143 and § 1173 (see Yasinosky v. Lenio, 28 A.D.3d 652, 653, 812 N.Y.S.2d 367;  Lallemand v. Cook, 23 A.D.3d 533, 806 N.Y.S.2d 619;  Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852;  Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81).   In opposition, the plaintiffs failed to raise a triable issue of fact.   The fact that the infant plaintiff did not see the defendant's approaching car does not excuse the infant plaintiff's conduct (see Ferrara v. Castro, 283 A.D.2d at 393, 724 N.Y.S.2d 81;  Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286).   Furthermore, the infant plaintiff's affidavit failed to raise a triable issue of fact regarding the defendant's alleged failure to take evasive action (see McNamara v. Fishkowitz, 18 A.D.3d 721, 722, 795 N.Y.S.2d 714;  Meliarenne v. Prisco, 9 A.D.3d 353, 354, 780 N.Y.S.2d 30;  Lupowitz v. Fogarty, 295 A.D.2d 576, 744 N.Y.S.2d 480).   Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted.