Opinion
658 CA 17–01793
06-15-2018
Margaret A. LUTTRELL, Plaintiff–Appellant, v. Julio R. VEGA, Defendant–Respondent.
FARACI LANGE, LLP, ROCHESTER (KRISTIN A. MERRICK OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICE OF JENNIFER S. ADAMS, WILLIAMSVILLE (SHAYNA D. GORSKI OF COUNSEL), FOR DEFENDANT–RESPONDENT.
FARACI LANGE, LLP, ROCHESTER (KRISTIN A. MERRICK OF COUNSEL), FOR PLAINTIFF–APPELLANT.
LAW OFFICE OF JENNIFER S. ADAMS, WILLIAMSVILLE (SHAYNA D. GORSKI OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, defendant's motion is denied, the complaint is reinstated and that part of plaintiff's cross motion for partial summary judgment on the issue of serious injury is granted.
Memorandum: Plaintiff commenced this negligence action seeking damages for injuries that she sustained when a vehicle operated by defendant struck her foot while she was walking her bicycle on the street beneath an overpass. We agree with plaintiff, as limited by her brief, that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint and denying that part of plaintiff's cross motion for partial summary judgment on the issue of serious injury.
Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every reasonable inference (see Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), we conclude that defendant failed to meet his initial burden on his motion of establishing as a matter of law that plaintiff's negligence was the sole proximate cause of the accident (see Chilinski v. Maloney, 158 A.D.3d 1174, 1175–1176, 70 N.Y.S.3d 635 [4th Dept. 2018] ). Defendant's own submissions raise triable issues of fact, including whether he violated his " ‘common-law duty to see that which he should have seen [as a driver] through the proper use of his senses’ " ( Sauter v. Calabretta, 90 A.D.3d 1702, 1703, 936 N.Y.S.2d 469 [4th Dept. 2011] ) and his statutory duty to "exercise due care to avoid colliding with any bicyclist [or] pedestrian" ( Vehicle and Traffic Law § 1146[a] ).
Finally, it is uncontested that plaintiff established as a matter of law on her cross motion that she sustained fractures in her foot as a result of the accident and, therefore, she is entitled to partial summary judgment on the issue of serious injury (see Insurance Law § 5102 [d] ).