CHERNIN v. (and a third-party action).

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

Roman CHERNIN, respondent, v. NEW YORK CITY METROPOLITAN TRANSIT AUTHORITY, et al., appellants (and a third-party action).

Decided: June 24, 2008

STEVEN W. FISHER, J.P., EDWARD D. CARNI, WILLIAM E. McCARTHY, and ARIEL E. BELEN, JJ. Wallace D. Gossett (Steven S. Efron, New York, N.Y., of counsel), for appellants. Michael C. Director (Shandell, Blitz, Blitz & Ashley, LLP, New York, N.Y. [Stewart G. Milch], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (D. Schmidt, J.), dated April 27, 2007, which denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In support of that branch of their motion which was for summary judgment dismissing the complaint, the defendants failed to meet their prima facie burden of establishing entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Viewing the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in his favor (see Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740;  Robinson Motor Xpress, Inc. v. HSBC Bank, USA, 37 A.D.3d 117, 119, 826 N.Y.S.2d 350), the plaintiff's deposition testimony, which the defendants submitted in support of their motion, raised an issue of fact as to whether the defendants' bus operator was negligent in stopping the subject bus in the crosswalk (see 34 RCNY 4-03[a][3][I], 4-08[e][5];  see also Schneider v. Diallo, 14 A.D.3d 445, 788 N.Y.S.2d 366).   Further, the plaintiff's deposition testimony raised a question of fact as to whether the location of the bus in the middle of the crosswalk, which allegedly blocked his view of oncoming traffic, including the van that struck him, was a proximate cause of his injuries (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Thomas v. Vezza, 29 A.D.3d 678, 815 N.Y.S.2d 154;  Jordan v. Aviles, 288 A.D.2d 347, 734 N.Y.S.2d 89;  Dery v. DeCostole Carting, 281 A.D.2d 508, 509, 722 N.Y.S.2d 57;  Perry v. Pelersi, 261 A.D.2d 780, 689 N.Y.S.2d 772;  Sullivan v. Locastro, 178 A.D.2d 523, 525, 577 N.Y.S.2d 631).

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