Wolbe v. Fishman

May 16, 2006
Versions:29 A.D.3d 785
815 N.Y.S.2d 208

Abraham Wolbe, Appellant, v Mordechai Fishman et al., Respondents. [815 NYS2d 208]

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated March 25, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff, who was six years old at the time of the accident, allegedly was injured when the bicycle he was riding out of his family‘s driveway collided with the passenger side of a vehicle driven by the defendant Mordechai Fishman and owned by the defendant Emanuel Fishman. The evidence established that the defendant operator was traveling between 10 and 15 miles per hour, his view of the plaintiff‘s driveway was obstructed by a vehicle parked in the roadway, and the infant plaintiff entered the roadway without yielding the right of way and rode into the defendants’ vehicle.

The defendants met their prima facie burden of establishing entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition thereto, the plaintiff failed to raise a triable issue of fact as to whether the defendant driver was operating his vehicle in other than a prudent and reasonable manner under all of the circumstances (see Green v Mower, 302 AD2d 1005 [2003], affd 100 NY2d 529 [2003]; Blazer v Tri-County Ambulette Serv., 285 AD2d 575 [2001]; Carrasco v Monteforte, 266 AD2d 330 [1999]; DiCocco v Center for Dev. Disabilities, 264 AD2d 803 [1999]; Brown v City of New York, 237 AD2d 398 [1997]; Wright v Morozinis, 220 AD2d 496 [1995]). Therefore, the Supreme Court properly granted the defendants’ motion for summary judgment.

Miller, J.P., Ritter, Goldstein and Lunn, JJ., concur.