Opinion
No. CA 10-01970.
February 10, 2011.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered June 11, 2010 in a personal injury action. The order denied the motion of defendant for summary judgment.
CHELUS, HERDZIK, SPEYER MONTE, P.C., BUFFALO (THOMAS P. KAWALEC OF COUNSEL), FOR DEFENDANT-APPELLANT.
O'BRIEN BOYD, P.C., WILLIAMSVILLE (CHRISTOPHER J. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Defendant met her initial burden by establishing that plaintiff, a pedestrian, unexpectedly darted into the path of her vehicle ( see Jellal v Brown, 37 AD3d 179; Sheppeard v Murci, 306 AD2d 268; Ash v McNamara, 288 AD2d 956, lv denied 97 NY2d 612). In opposition to the motion, however, plaintiff raised a triable issue of fact whether defendant was speeding at the time of the accident ( see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to defendant's contention, the deposition testimony of a non-party witness regarding defendant's speed was not so inconsistent or speculative as to render it insufficient to defeat the motion ( cf. Sheppeard, 306 AD2d 268; Wolf v We Transp., 274 AD2d 514).