MEI v. CHEUNG (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated August 10, 2021.  The order granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff pedestrian allegedly sustained injuries when she was struck by the defendant's vehicle as she attempted to cross 67th Street at its intersection with 6th Avenue in Brooklyn.  The plaintiff commenced this action to recover damages for personal injuries and thereafter moved for summary judgment on the issue of liability.  In an order dated August 10, 2021, the Supreme Court granted the plaintiff's motion.  The defendant appeals.

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74;  see Ortiz v. Zurita, 195 A.D.3d 734, 735, 145 N.Y.S.3d 359).  “A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d at 1034, 83 N.Y.S.3d 74;  see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366).  “A driver is bound to see what is there to be seen with the proper use of his or her senses” (Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, the transcripts of the parties’ deposition testimony, which demonstrated that the plaintiff was struck by the defendant's vehicle while walking within a crosswalk, that she had observed the conditions of approaching traffic before she began to cross, and that the defendant was negligent in failing to yield the right-of-way (see Ustelimova v. Madar, 159 A.D.3d 984, 72 N.Y.S.3d 595;  Friedman v. Rogerson, 131 A.D.3d 1204, 1204–1205, 16 N.Y.S.3d 770;  Garcia v. Lenox Hill Florist III, Inc., 120 A.D.3d 1296, 1297, 993 N.Y.S.2d 86;  Hamilton v. King Tung Kong, 93 A.D.3d 821, 822, 940 N.Y.S.2d 901;  Rosenblatt v. Venizelos, 49 A.D.3d 519, 520, 853 N.Y.S.2d 578).  The defendant's contention that the accident was the result of the plaintiff's conduct in crossing the street outside the crosswalk is speculative, as the defendant testified that he did not see the plaintiff until the impact had already occurred (see Martinez v. Premium Laundry Corp., 181 A.D.3d 439, 121 N.Y.S.3d 237;  Bush v. Kovacevic, 140 A.D.3d 1651, 1653, 33 N.Y.S.3d 623;  France Herly Bien–Aime v. Clare, 124 A.D.3d 814, 814–815, 2 N.Y.S.3d 557;  see also Orellana v. Mendez, 208 A.D.3d 888, 890, 174 N.Y.S.3d 445).

In opposition to the plaintiff's prima facie showing, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and WAN, JJ., concur.