Opinion
2012-05-10
Melissa MOREIRA, Plaintiff–Respondent, v. Paulino RAMOS, Defendant–Appellant.
Cullen and Dykman, Brooklyn (Allyson D. Johnson Flash of counsel), for appellant. The Law Office of Judah Z. Cohen, PLLC, Hewlett (Judah Z. Cohen of counsel), for respondent.
Cullen and Dykman, Brooklyn (Allyson D. Johnson Flash of counsel), for appellant. The Law Office of Judah Z. Cohen, PLLC, Hewlett (Judah Z. Cohen of counsel), for respondent.
TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered July 20, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff was injured when she came in contact with defendant's vehicle. Defendant testified that plaintiff, while “messing with a radio,” walked into the passenger side of his van as she attempted to cross the street in the middle of the block from betweentwo parked cars. Defendant also stated that he was driving between 10 and 15 miles per hour at the time of impact. Plaintiff had a limited recollection of the accident, but she remembered reaching the corner of the intersection and that she was not listening to music. Viewing the evidence in the light most favorable to plaintiff, triable issues of fact exist as to whether plaintiff was in an intersection crossing at the time of the accident and whether defendant failed to exercise due care to avoid the accident ( see Wein v. Robinson, 92 A.D.3d 578, 939 N.Y.S.2d 364 [2012];Villaverde v. Santiago–Aponte, 84 A.D.3d 506, 922 N.Y.S.2d 369 [2011] ).