CATOR v. FILIPE (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), entered November 20, 2006, which denied her motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff pedestrian was crossing the street within a crosswalk with the traffic light in her favor, when she was struck by the defendant's vehicle as it was making a left turn.   While the defendant failed to yield the right of way to the plaintiff in apparent violation of Vehicle and Traffic Law § 1112(a), the plaintiff testified at her deposition that she had not looked to her left or right while crossing the street.   Under the circumstances, the plaintiff failed to meet her burden of demonstrating her prima facie entitlement to judgment as a matter of law on the issue of liability (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298), since a triable issue of fact exists as to her comparative negligence (see Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690;  Albert v. Klein, 15 A.D.3d 509, 789 N.Y.S.2d 684;   Schmidt v. Flickinger Co., 88 A.D.2d 1068, 452 N.Y.S.2d 767).

Our holding in Hoey v. City of New York, 28 A.D.3d 717, 813 N.Y.S.2d 533 is distinguishable since, in that case, the plaintiff demonstrated that he had been observing vehicles making turns at the time of the accident.