RAMIREZ FREYTES v. MOLINA

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Priscila RAMIREZ, an Infant Under the Age of Fourteen Years by Her Mother and Natural Guardian, Cecilia FREYTES, et al., Plaintiffs–Respondents, v. Ana L. MOLINA, et al., Defendants–Appellants.

Decided: February 18, 2014

MAZZARELLI, J.P., ANDRIAS, DeGRASSE, CLARK, JJ. Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 3, 2013, which denied defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant Juan Carlos Molina testified that he first saw the eight year old plaintiff, who had no memory of the incident, two to three seconds before impact, when she was approximately one foot away from his vehicle. Traveling 12 miles per hour, he hit his brakes and turned his wheel to the right in an unsuccessful attempt to avoid the accident. It was also unrefuted that the infant plaintiff left the safety of the sidewalk, attempted to cross the roadway outside of the crosswalk, and moved into the path of the vehicle. Under such circumstances, defendants were entitled to summary dismissal (see Sakho v. City of New York, 88 AD3d 581 [1st Dept 2011]; DeJesus v. Alba, 63 AD3d 460 [1st Dept 2009], affd 14 NY3d 860 [2010]; Brown v. Muniz, 61 AD3d 526 [1st Dept 2009], lv denied 13 NY3d 715 [2010]; Jellal v. Brown, 37 AD3d 179 [1st Dept 2007] ).

The child's parents' affidavits which speculated that Molina was being untruthful about the speed of his vehicle, based upon the location of their daughter after the impact, or that he should have been able to stop in the two to three seconds after first observing the child, were insufficient to rebut defendants' entitlement to summary judgment (see Brown v. Muniz, 61 AD3d at 528, citing Murray v. Donlan, 77 A.D.2d 337 [1980], appeal dismissed 52 N.Y.2d 1071 [1981] ).