USTELIMOVA v. MADAR (2018)

DECISION & ORDER

Appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated December 7, 2016.  The order denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

On October 14, 2015, the plaintiff, while pushing a cart, was crossing Seton Place at its intersection with 18th Avenue in Brooklyn when a vehicle owned and operated by the defendant allegedly struck her while she was walking in the crosswalk as the vehicle was making a turn.  The plaintiff subsequently commenced this action to recover damages for personal injuries.  After joinder of issue, but prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability.  The Supreme Court denied the motion with leave to renew upon the completion of discovery.

In support of her motion, the plaintiff submitted, inter alia, her affidavit, wherein she averred that she was walking within a crosswalk when the defendant's vehicle failed to yield the right-of-way and struck her.  She also averred that, exercising due care, she had looked in both directions to check for approaching vehicles before she entered the crosswalk.  This evidence was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability, including her freedom from comparative fault (see Zhu v. Natale, 131 A.D.3d 607, 15 N.Y.S.3d 204;  Ricci v. Lo, 95 A.D3d 859, 942 N.Y.S.2d 644;  Hamilton v. King Tung Kong, 93 A.D.3d 821, 940 N.Y.S.2d 901;  Kusz v. New York City Tr. Auth., 88 A.D.3d 768, 930 N.Y.S.2d 892).  In opposition, however, the defendant submitted his own affidavit in which he provided an account of the accident which contradicted the plaintiff's account (see Voskoboinyk v. Trebisovsky, 154 A.D.3d 997, 998, 62 N.Y.S.3d 195).  The defendant averred that the plaintiff was still on the sidewalk when he began his turn and that he had almost completed the turn when the plaintiff's cart came into contact with the rear passenger side of his vehicle.  Thus, the defendant raised triable issues of fact as to how the accident occurred, whether he was negligent and, if so, whether the plaintiff was comparatively at fault (see Pilgrim v. Vishwanathan, 151 A.D.3d 769, 771, 56 N.Y.S.3d 268; Milkins v. New York City Tr. Auth., 140 A.D.3d 936, 936–937, 33 N.Y.S.3d 454;  Gonzalez v. City of New Rochelle, 132 A.D.3d 724, 725, 18 N.Y.S.3d 98).

In light of our determination, we need not address the defendant's remaining contention.

DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.