VOSKIN v. LEMEL (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 17, 2007, which denied his motion for summary judgment on the issue of liability with leave to renew after the depositions of the parties.

ORDERED that the order is reversed, on the law and the facts, with costs, and the plaintiff's motion for summary judgment on the issue of liability is granted.

In this case involving an accident between a motor vehicle and a pedestrian, the plaintiff established his prima facie entitlement to summary judgment in his favor by demonstrating that the defendant motorist was negligent in failing to yield the right of way to him while he was crossing a street, within the crosswalk, with the pedestrian “WALK” signal in his favor (see Zabusky v. Cochran, 234 A.D.2d 542, 651 N.Y.S.2d 190;  Jermin v. APA Truck Leasing Co., 237 A.D.2d 255, 655 N.Y.S.2d 406).   The plaintiff's case was buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him (see Niyazov v. Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582;  Vaden v. Rose, 4 A.D.3d 468, 771 N.Y.S.2d 670;  Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d 629;  Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465).   The defendant did not deny that the plaintiff was within the crosswalk and had the light signal in his favor at the time of the accident.   The defendant's affidavit in opposition was insufficient to defeat the motion for summary judgment (see Capraro v. Staten Is. Univ. Hosp., 245 A.D.2d 256, 664 N.Y.S.2d 826;  Miller v. City of New York, 214 A.D.2d 657, 625 N.Y.S.2d 271;  Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190), and the defendant failed to demonstrate that further discovery was warranted (see Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516).