Opinion
05-03-2016
CARMEN O., an Infant, by Her Mother and Natural Guardian, GLORIA O., et al., Plaintiffs–Respondents, v. Stephen JAMES, et al., Defendants–Appellants.
Lynch Rowin LLP, New York (Marc Rowin of counsel), for Stephen James and Sears Roebuck and Co., appellants. Russo & Toner, LLP, New York (Alexandra L. Alvarez of counsel), for Marion Cabrera and Marion Rivera, appellants. Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondents.
Lynch Rowin LLP, New York (Marc Rowin of counsel), for Stephen James and Sears Roebuck and Co., appellants.
Russo & Toner, LLP, New York (Alexandra L. Alvarez of counsel), for Marion Cabrera and Marion Rivera, appellants.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondents.
Opinion Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 22, 2015, which denied defendants' motions for summary judgment dismissing plaintiffs' complaint, unanimously affirmed, without costs.
Issues of fact exist as to whether defendant drivers used reasonable care to avoid hitting the infant plaintiff (plaintiff), then 15 years old, who was crossing a roadway outside the crosswalk and had stopped in the middle of the road before being hit by defendants (see Vehicle and Traffic Law §§ 1146[a], 1180[a] ; Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ; Romeo v. DeGennaro, 255 A.D.2d 208, 208, 680 N.Y.S.2d 235 [1st Dept.1998] ). While plaintiff may bear some responsibility, defendants have not established, as a matter of law, that plaintiff was the sole proximate cause of her injuries, and thus there is an issue of comparative negligence for the jury (Charleston v. City of New York, 100 A.D.3d 471, 472, 954 N.Y.S.2d 34 [1st Dept.2012] ).
We have considered the appealing parties' remaining contentions and find them unavailing.
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, MOSKOWITZ, KAHN, JJ., concur.