Kusz v New York City Tr. Auth.

Oct 11, 2011
2010-06247
Versions:2011 NY Slip Op 07203
88 AD3d 768

Alfred Kusz et al., Appellants-Respondents, v New York City Transit Authority et al., Respondents-Appellants.

— Lipsig Shapey Manus & Moverman, P.C. (Alan M. Shapey and Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Murray Greenberg and Brian J. Isaac], of counsel), for appellants-respondents.

Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for respondents-appellants.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Cullen, J.), entered June 10, 2010, as denied their motion for summary judgment on the issue of liability, without prejudice to renewal after the completion of discovery, and the defendants cross-appeal from so much of the same order as, upon denying the plaintiffs’ motion, did so without prejudice to renewal.

Ordered that the cross appeal is dismissed, without costs or disbursements, as no appeal lies as of right from the portion of the order cross-appealed from, and we decline to grant leave to cross-appeal (see CPLR 5701); and it is further,

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Alfreda Kusz (hereinafter the injured plaintiff) was crossing Jackson Avenue in Queens County when she was struck by a New York City bus driven by the defendant Jose Mateo (hereinafter the defendant driver). The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability against the defendants by demonstrating that the defendant driver failed to yield the right-of-way to the injured plaintiff, who was crossing the street within the crosswalk with the pedestrian crossing signal in her favor, after looking both ways (see Benedikt v Certified Lbr. Corp., 60 AD3d 798 [2009]; Rosenblatt v Venizelos, 49 AD3d 519 [2008]).

In opposition, the defendants raised a triable issue of fact regarding the injured plaintiff‘s comparative negligence. Accordingly, the plaintiffs’ motion for summary judgment on the issue of liability was properly denied without prejudice to renewal after the completion of discovery (see CPLR 3212 [f]). Dillon, J.P., Leventhal, Hall and Lott, JJ., concur.