Opinion
2021-03551 Index 23816/17E
06-08-2021
Francesca M. Maimone, Plaintiff-Respondent, v. Derrick L. Hughie, et al., Defendants-Appellants. Appeal No. 14015 No. 2020-04256
Vigorito, Barker, Patterson. Nichols & Porter, Valhalla (Leilani J. Rodriguez of counsel), for appellants. Law offices of Joseph A. Romano, P.C., Yonkers (Joseph A. Romano of counsel), for respondent.
Vigorito, Barker, Patterson. Nichols & Porter, Valhalla (Leilani J. Rodriguez of counsel), for appellants.
Law offices of Joseph A. Romano, P.C., Yonkers (Joseph A. Romano of counsel), for respondent.
Before: Renwick, J.P., Kern, Scarpulla, Mendez, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about May 29, 2020, which, to the extent appealed as limited by the briefs, granted plaintiff's motion for partial summary judgment on the issue of liability and dismissed the affirmative defense regarding plaintiff's comparative fault, unanimously affirmed, without costs.
Plaintiff, a pedestrian, allegedly sustained injuries after she was struck by a vehicle owned by defendant Tremont Electric Co., Inc. and operated by defendant Derrick L. Hughie.
Plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit and deposition testimony, which consistently showed that she was walking in the crosswalk, with the pedestrian "walk" signal in her favor, when Hughie failed to yield the right-of-way and struck her (see Rozon v Rosario, 144 A.D.3d 597 [1st Dept 2016]; Perez-Hernandez v M. Marte Auto Corp., 104 A.D.3d 489, 490 [1st Dept 2013]). Her version of how the accident occurred was fully corroborated by the affidavit of the eyewitness. The evidence plaintiff submitted also sufficiently established, prima facie, that she was not at fault in the happening of the accident, because she exercised due care by confirming that the pedestrian" walk" signal was in her favor, looked for oncoming traffic in all directions before entering the crosswalk, and could not avoid the collision that occurred so suddenly (see Hines v New York City Tr. Auth., 112 A.D.3d 528 [1st Dept 2013]).
In opposition, defendants failed to raise a triable issue of fact. Defendants did not dispute that the light was in plaintiff's favor when she was struck by their vehicle while she was crossing the street (see Bokum v Sera Sec. Servs., LLC, 165 A.D.3d 535 [1st Dept 2018]). Even though Hughie found plaintiff lying in the crosswalk as a result of the accident, he maintained that plaintiff was not within the crosswalk at the time of impact. In any event, this claim was speculative in view of Hughie's admission that he did not see plaintiff until the impact had already occurred. (see e.g. France Herly Bien-Aime v Clare, 124 A.D.3d 814, 815 [2d Dept 2015]).