Summary
holding that the defendant's "unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact"
Summary of this case from Brill v. Queens Lumber Co.Opinion
2012-03-27
Christopher HAMILTON, respondent, v. KING TUNG KONG, appellant.
Law Office of Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for respondent.
Law Office of Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), dated September 7, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
The plaintiff pedestrian was crossing a street when he was struck by a vehicle owned and operated by the defendant. The plaintiff established, prima facie, his entitlement to judgment as a matter of law on the issue of liability by presenting proof that he was walking within a crosswalk and that he looked for approaching traffic before he began to cross ( see Rosenblatt v. Venizelos, 49 A.D.3d 519, 520, 853 N.Y.S.2d 578; see also Vehicle and Traffic Law § 1151[a]; 34 RCNY 4–04[b] ). Contrary to the defendant's contention, his unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact in opposition to the motion ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sulaiman v. Thomas, 54 A.D.3d 751, 752, 863 N.Y.S.2d 723; see also Platt v. Wolman, 29 A.D.3d 663, 663, 816 N.Y.S.2d 121; Klein v. Byalik, 1 A.D.3d 399, 400, 766 N.Y.S.2d 687). Since the defendant failed to raise a triable issue of fact in opposition to the plaintiff's prima facie showing, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.