Opinion
15899-15899A Index No. 22507/17E Case No. 2021–01625 2022-00033
05-10-2022
Soknyroth PRAK, Plaintiff–Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents.
German Rubenstein LLP, New York (Joel M. Rubenstein of counsel), for appellant. Gallo, Vitucci & Klar, New York (Yolanda L. Ayala of counsel), for respondents.
German Rubenstein LLP, New York (Joel M. Rubenstein of counsel), for appellant.
Gallo, Vitucci & Klar, New York (Yolanda L. Ayala of counsel), for respondents.
Webber, J.P., Singh, Moulton, Kennedy, Rodriguez, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 29, 2021, which denied plaintiff's motion for summary judgment as to liability and striking defendants’ first, third, fourth, and sixth affirmative defenses, unanimously modified, on the law, to grant the motion as to the third affirmative defense, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about September 14, 2021, to the extent it denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable order.
The conflict between plaintiff's version of the accident, in which defendant bus driver pulled out of a bus stop without yielding the right-of-way to her, and the bus driver's version, in which plaintiff turned right suddenly in front of the moving bus, presents issues of fact precluding summary judgment as to liability (see Savall v. New York City Tr. Auth., 173 A.D.3d 566, 102 N.Y.S.3d 589 [1st Dept. 2019] ).
Plaintiff failed to submit evidence in support of dismissing the first, fourth and sixth affirmative defenses, which allege, respectively, that she was comparatively negligent, that defendants were faced with an emergency, and that she failed to mitigate her injuries (see Bhowmik v. Santana, 140 A.D.3d 460, 33 N.Y.S.3d 51 [1st Dept. 2016] ; Romero v. Valdez, 198 A.D.3d 496, 497, 156 N.Y.S.3d 19 [1st Dept. 2021], lv denied 37 N.Y.3d 1232, 164 N.Y.S.3d 68, 184 N.E.3d 889 [2022] ). However, the third affirmative defense, that plaintiff was not wearing a seat belt, should be dismissed, since plaintiff testified that she was wearing a seat belt and defendants offered no evidence to the contrary (see Stickney v. Alleca, 52 A.D.3d 1214, 1215, 860 N.Y.S.2d 352 [4th Dept. 2008] ).
No appeal lies from the denial of a motion for reargument ( Matter of Able Rigging Contrs., Inc. v. Gemini Mach. Works, Inc., 200 A.D.3d 588, 155 N.Y.S.3d 770 [1st Dept. 2021] ; CPLR 5701[a][2][viii] ).