EBBOLE v. NAGY

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

Jennifer M. EBBOLE and Michael P. Ebbole, Plaintiffs–Respondents, v. Peter J. NAGY, Defendant–Appellant.

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Decided: February 08, 2019

PRESENT:  WHALEN, P.J., CENTRA, NEMOYER, CURRAN, AND WINSLOW, JJ. LAW OFFICES OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from an order that, inter alia, denied his motion for summary judgment dismissing the complaint.  We affirm.  Plaintiffs were crossing a street outside of a crosswalk when defendant hit them with his car.  Defendant did not meet his prima facie burden of establishing entitlement to judgment as a matter of law because his own motion papers raise a triable issue of fact whether he was negligent (see Pagels v. Mullen, 167 A.D.3d 185, 188–189, 88 N.Y.S.3d 727 [4th Dept. 2018] ).  In support of his motion, defendant submitted the report of his expert, wherein the expert opined that defendant would have had only two seconds' warning between the time when he saw plaintiffs and the time when the collision occurred.  A period of two seconds “is generally insufficient to raise a triable issue of fact with respect to a driver's failure to take evasive action” (Lupowitz v. Fogarty, 295 A.D.2d 576, 576, 744 N.Y.S.2d 480 [2d Dept. 2002] ).  Defendant also submitted, however, the deposition testimony of one of the plaintiffs, who testified that he made eye contact with defendant right before crossing the street and that defendant's car was stopped at that time (cf.  Singh v. Reagan, 118 A.D.3d 1474, 1475, 988 N.Y.S.2d 807 [4th Dept. 2014] ).  We conclude that defendant's expert, in his report, did not assume the truth of the plaintiff's testimony in reaching his conclusion, and therefore, his opinion did not satisfy defendant's initial burden of eliminating all material issues of fact (see Perez v. New York City Hous. Auth., 114 A.D.3d 586, 586, 981 N.Y.S.2d 59 [1st Dept. 2014] ).  Thus, there are issues of fact whether defendant was negligent—i.e., whether he saw what was there to be seen and had enough time to take evasive action to avoid the collision (see Spicola v. Piracci, 2 A.D.3d 1368, 1369, 768 N.Y.S.2d 867 [4th Dept. 2003];  see generally Brenner v. Dixon, 98 A.D.3d 1246, 1248, 951 N.Y.S.2d 635 [4th Dept. 2012] ).