HOPKINS v. HABER (2007)

In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Kings County (Demarest, J.), dated May 18, 2006, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiffs failed to establish, prima facie, that the defendant driver's alleged negligence in the operation of her vehicle was the sole proximate cause of the accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Here, a triable issue of fact exists as to whether the plaintiffs' decedent was crossing the street within the crosswalk and whether she contributed to the cause of the accident (see Vehicle and Traffic Law § 1152[a];  Parrinello v. Davis, 2 A.D.3d 610, 768 N.Y.S.2d 348;  Dragunova v. Dondero, 305 A.D.2d 449, 758 N.Y.S.2d 819;  Ruocco v. Mulhall, 281 A.D.2d 406, 721 N.Y.S.2d 286).   Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability.