STALLINGS v. COPELAND

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Supreme Court, Appellate Division, Fourth Department, New York.

Florence STALLINGS, Mother and Natural Guardian of Maya Elizabeth B., an Infant, Plaintiff-Respondent, v. Larry COPELAND, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, GREEN, AND HAYES, JJ. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Thomas F. Kirkpatrick, Jr., of Counsel), for Defendant-Appellant. Faraci Lange, LLP, Rochester (Carol A. McKenna of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action on behalf of her daughter seeking damages for injuries sustained by her daughter when she was struck by a vehicle owned and operated by defendant.   Defendant moved for summary judgment dismissing the amended complaint on the ground that plaintiff's daughter suddenly and unexpectedly ran in front of his vehicle, rendering the collision unavoidable.   Supreme Court properly denied the motion on the ground that defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   According to the deposition testimony of defendant submitted in support of the motion, defendant did not keep his eyes on the road at all times while approaching plaintiff's daughter but, instead, looked away from the road, to his left, and observed plaintiff just before the collision.   Defendant further testified that he observed plaintiff's daughter prior to the collision and failed to warn her that he was approaching.   We thus conclude that defendant failed to establish as a matter of law that he exercised the requisite due care to avoid the collision with plaintiff's daughter (see 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, 721 N.Y.S.2d 286).   Because defendant failed to meet his initial burden on the motion, we do not address the sufficiency of plaintiff's 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).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: