Summary
In Ramirez, the Court emphasized how plaintiff's actions in leaving the safety of the sidewalk and attempting to cross the roadway outside of the pedestrian walkway supported the finding that plaintiff “moved into the path of the vehicle” (Ramirez, 114 AD3d at 540;see also DeJesus, 63 AD3d at 463 [“Had plaintiff, who was 16 years old, not entered the street, without warning, there would have been no accident.
Summary of this case from Ramirez v. RosarioOpinion
2014-02-18
Priscila RAMIREZ, an Infant Under the Age of Fourteen Years by Her Mother and Natural Guardian, Cecilia FREYTES, et al., Plaintiffs–Respondents, v. Ana L. MOLINA, et al., Defendants–Appellants.
Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for respondents.
Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, CLARK, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 3, 2013, which denied defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant Juan Carlos Molina testified that he first saw the eight year old plaintiff, who had no memory of the incident, two to three seconds before impact, when she was approximately one foot away from his vehicle. Traveling 12 miles per hour, he hit his brakes and turned his wheel to the right in an unsuccessful attempt to avoid the accident. It was also unrefuted that the infant plaintiff left the safety of the sidewalk, attempted to cross the roadway outside of the crosswalk, and moved into the path of the vehicle. Under such circumstances, defendants were entitled to summary dismissal ( see Sakho v. City of New York, 88 A.D.3d 581, 931 N.Y.S.2d 211 [1st Dept.2011];DeJesus v. Alba, 63 A.D.3d 460, 882 N.Y.S.2d 12 [1st Dept.2009],affd.14 N.Y.3d 860, 902 N.Y.S.2d 27, 928 N.E.2d 409 [2010];Brown v. Muniz, 61 A.D.3d 526, 878 N.Y.S.2d 683 [1st Dept.2009],lv. denied13 N.Y.3d 715, 2010 WL 118259 [2010];Jellal v. Brown, 37 A.D.3d 179, 830 N.Y.S.2d 510 [1st Dept.2007] ).
The child's parents' affidavits which speculated that Molina was being untruthful about the speed of his vehicle, based upon the location of their daughter after the impact, or that he should have been able to stop in the two to three seconds after first observing the child, were insufficient to rebut defendants' entitlement to summary judgment ( see Brown v. Muniz, 61 A.D.3d at 528, 878 N.Y.S.2d 683, citing Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 [1980],appeal dismissed52 N.Y.2d 1071 [1981] ).