Bush v. KovacevicBush v. Kovacevic
It is hereby ordered that the order so appealed from is unanimously modified on the law by granting that part of plaintiff‘s motion that sought summary judgment with respect to the issues of defendant‘s negligence and proximate cause and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when, as a pedestrian, she was struck by a vehicle owned and operated by defendant. Following discovery, plaintiff purported to move for partial summary judgment “on the issue of liability,” but she did so without raising the issue of serious injury (see generally Ruzycki v Baker, 301 AD2d 48, 51 [2002]). Although not explicitly mentioned in her motion, plaintiff implicitly sought summary judgment dismissing defendant‘s first affirmative defense, which alleged plaintiff‘s comparative negligence, i.e., whether plaintiff‘s own conduct contributed to the accident. Supreme Court denied the motion.
As a preliminary matter, we note that because plaintiff did not raise the issue of serious injury on her motion, we cannot presume that such issue “was necessarily decided” by the court (Ruzycki, 301 AD2d at 51). We therefore address plaintiff‘s motion only with respect to the issues of defendant‘s negligence and proximate cause (see Leahey v Fitzgerald, 1 AD3d 924, 925 [2003]; cf. Stevens v Zukowski, 55 AD3d 1400, 1401 [2008]). We conclude that the court erred in denying the motion with respect to the issues of defendant‘s negligence and proximate cause, but properly denied the motion insofar as it implicitly sought dismissal of the first affirmative defense (see Brubaker v Houseknecht, 83 AD3d 1539, 1540 [2011]). Plaintiff established her prima facie entitlement to judgment as a matter of law on the issues of defendant‘s negligence and proximate cause by establishing that she was crossing the street within the crosswalk when she was “struck by defendant‘s vehicle, which was making a left turn” (Beamud v Gray, 45 AD3d 257, 257 [2007]; see Gyabaah v Rivlab Transp. Corp., 129 AD3d 447, 447 [2015]; see generally
In support of her motion, plaintiff submitted defendant‘s deposition testimony. In that testimony, defendant stated that, because she struck plaintiff on the passenger side of her car, plaintiff “had to have been maybe two feet off of the crosswalk.” Although defendant contends that plaintiff may have violated
In any event, defendant admitted that she did not see plaintiff until the impact had already occurred, and we thus conclude that defendant‘s claim concerning plaintiff‘s location in the street is mere speculation and an insufficient basis to deny plaintiff‘s motion insofar as it relates to defendant‘s negligence (see France Herly Bien-Aime v Clare, 124 AD3d 814, 815 [2015]; Sulaiman v Thomas, 54 AD3d 751, 752 [2008]). Although defendant contended that she looked for pedestrians before turning left, defendant had both “a statutory duty to use due care to avoid colliding with pedestrians” (Barbieri v Vokoun, 72 AD3d 853, 856 [2010]; see
Contrary to plaintiff‘s contention, however, we conclude that there are issues of fact concerning plaintiff‘s comparative negligence (see Brubaker, 83 AD3d at 1540). We agree with defendant that the evidence submitted by plaintiff establishes that there are triable issues of fact whether the light for pedestrian traffic had changed before plaintiff commenced walking across the street (see generally
In opposition to the motion, defendant submitted an uncertified police accident report, wherein the police officer indicated that there was damage to the front passenger side of defend