DIASPARRA v. Teresa A. Karch, Appellant.

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

Martha DIASPARRA, Plaintiff-Respondent, v. Nigel P. SMITH, Defendant-Respondent, Teresa A. Karch, Appellant.

Decided: September 28, 1998

Before O'BRIEN, J.P., and RITTER, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ. Bryan M. Rothenberg, Mineola, for appellant. Finz & Finz, P.C., New York City (Jay L. Feigenbaum, of counsel), for plaintiff-respondent. Curtis, Zakiewicz, Vasile, Devine & McElhenny, Merrick (Robert M. Smith of counsel), for defendant-respondent.

In an action to recover damages for personal injuries, the defendant Teresa A. Karch appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated September 16, 1997, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the defendant Teresa A. Karch, and the action against the remaining defendant is severed.

 The admission of the defendant Nigel P. Smith that he entered the intersection in which the accident occurred while the light was red made out a prima facie case that he was solely liable for the accident (see, Salenius v. Lisbon, 217 A.D.2d 692, 630 N.Y.S.2d 531;  Hill v. Luna, 195 A.D.2d 1000, 600 N.Y.S.2d 563).   In opposition to the motion, the respondents failed to raise a triable issue of fact as to whether the defendant Teresa A. Karch had been comparatively negligent in failing to exercise reasonable care in entering the intersection or in avoiding the collision (see, Salenius v. Lisbon, supra;  Wilke v. Price, 221 A.D.2d 846, 633 N.Y.S.2d 686;  Cassidy v. Valenti, 211 A.D.2d 876, 621 N.Y.S.2d 405;  Hill v. Luna, supra;  Stinehour v. Kortright, 157 A.D.2d 899, 550 N.Y.S.2d 169).


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