Wallace v. BarodyWallace v. Barody
Garry, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered November 12, 2013 in Saratoga County, which granted defendant‘s motion for summary judgment dismissing the complaint.
Defendant was driving through an intersection on Upper Glen Street in the Town of Queensbury, Saratoga County when her vehicle struck and killed a pedestrian (hereinafter decedent), who was crossing against the light in a crosswalk. Plaintiff commenced this negligence action on decedent‘s behalf. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and plaintiff appeals.
Defendant demonstrated her prima facie entitlement to summary judgment by providing evidence that decedent “darted” so suddenly into the path of defendant‘s vehicle that she was unable to avoid the collision (St. Andrew v O‘Brien, 45 AD3d 1024, 1027-1028 [2007], lv dismissed and denied 10 NY3d 929 [2008] [internal quotation marks and citations omitted]; see Green v Hosley, 117 AD3d 1437, 1437-1438 [2014]; Sheppeard v Murci, 306 AD2d 268, 268-269 [2003]). Defendant‘s affidavit and deposition testimony and the affidavits of several witnesses, taken together, establish that, in the moments immediately before the accident, defendant was driving north in the outside lane of the two northbound lanes. A large cargo van was traveling beside and slightly ahead of her in the inside northbound lane. The two vehicles entered the intersection with a green light in their favor and passed most of the way through it. The van stopped abruptly on the north side of the intersection, just before reaching the pedestrian crosswalk, to avoid colliding with decedent. The van driver stated that decedent was walking rapidly through the crosswalk from the van driver‘s left and—although he was crossing against a red light—was gazing straight ahead
Defendant testified that she had seen the van traveling beside her before the accident. She did not see decedent until a person‘s face appeared on her windshield, at which point she immediately braked to a stop. She realized at the moment of impact that the van beside her had stopped. Her vehicle sustained damage to the driver‘s side mirror and the windshield on that side. The driver of a vehicle directly behind defendant testified by affidavit that he saw the van brake abruptly to a stop, after which decedent stepped from in front of the van into defendant‘s lane, moving so quickly that defendant did not have time to avoid striking him. Another witness saw decedent pass in front of the van and confirmed that he did so without stopping, slowing down or hesitating. These consistent accounts were sufficient to establish defendant‘s prima facie entitlement to summary judgment, shifting the burden to plaintiff to establish an issue of fact as to whether defendant was operating her vehicle in a negligent manner (see Warley v Grampp, 103 AD3d 997, 998 [2013]).
As plaintiff argues, defendant had a duty to see what was there to be seen through the proper use of her senses (see Ranaudo v Key, 83 AD3d 1315, 1316 [2011]; National Interstate v A.J. Murphy Co., Inc., 9 AD3d 714, 715-716 [2004]). However, plaintiff presented no evidence challenging defendant‘s showing that defendant could not have seen decedent before he stepped into the path of her vehicle. Plaintiff likewise offered no evidence establishing an issue of fact as to whether defendant violated the statutory duty to operate her vehicle with “due care to avoid colliding with any . . . pedestrian” (
Contrary to plaintiff‘s contention, defendant‘s failure to give warning by sounding her horn does not establish that she violated the statutory duty to do so “when necessary,” as the uncontradicted evidence establishes that defendant could not see decedent and had no time to give warning before the impact (
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the order is affirmed, with costs.