Opinion
11527 Index 25788/18E
05-14-2020
Maria GIL, Plaintiff–Appellant, v. JEWISH BOARD OF FAMILY AND CHILDREN'S SERVICES, Inc., et al., Defendants–Respondents.
Reid B. Wissner, New York, for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L.Ritzert of counsel), for respondents.
Reid B. Wissner, New York, for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola (Gail L.Ritzert of counsel), for respondents.
Friedman, J.P., Gische, Kapnick, González, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered December 2, 2019, which, inter alia, denied plaintiff's motion for partial summary judgment as to the liability of defendants Jewish Board of Family and Children's Services, Inc. (JBFCS) and Haley Claiborne, and to dismiss the affirmative defenses alleging plaintiff's comparative fault, unanimously affirmed, without costs.
Plaintiff was injured when, while walking in a mall parking lot, she was struck by a vehicle owned by JBFCS and driven by Claiborne in the course of her employment. The record presents triable issues of fact as to whether Claiborne exercised due care while operating the vehicle to avoid the accident. Claiborne testified that before backing the vehicle out of its parking spot, she looked to her right and left and then looked in the rear-view camera to assure that nobody was behind her (see Vehicle & Traffic Law § 1146[a] ; Rodriguez v. CMB Collision Inc., 112 A.D.3d 473, 977 N.Y.S.2d 21 [1st Dept. 2013] ; Wein v. Robinson, 92 A.D.3d 578, 939 N.Y.S.2d 364 [1st Dept. 2012] ). Plaintiff does not address her failure to allege that Claiborne violated Vehicle & Traffic Law § 1211(a) until her reply, and plaintiff may not be awarded partial summary judgment based upon an unpleaded statutory violation.
Furthermore, plaintiff's deposition testimony demonstrates that there is a triable issue of fact as to whether she was comparatively negligent in the happening of the accident. She testified that immediately before being struck by defendants' vehicle, she turned her head to look behind her and stopped observing the surrounding traffic conditions (see Dunajski v. Kirillov, 148 A.D.3d 991, 992–993, 49 N.Y.S.3d 751 [2d Dept. 2017] ).