VANNI v. BARTMAN (2005)

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated October 10, 2003, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.   The defendant failed to establish, as a matter of law, that the conduct of the plaintiff's decedent in crossing the street at a location other than an intersection was the sole proximate cause of the accident, and that he was free from negligence in failing to avoid a collision with the plaintiff's decedent (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Gecaj v. DiFiglio, 303 A.D.2d 548, 549, 756 N.Y.S.2d 463;  Levy v. Town Bus Corp., 293 A.D.2d 452, 739 N.Y.S.2d 459;  Charles v. Ball, 291 A.D.2d 367, 737 N.Y.S.2d 116;  Ruocco v. Mulhall, 281 A.D.2d 406, 407, 721 N.Y.S.2d 286;  Vehicle and Traffic Law § 1146, 1152[a] ).   Since the defendant failed to meet its burden of proof, we need not address the sufficiency of the plaintiffs' papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).