Vanni v. Bartman

8 Citing cases

  1. Rodriguez v. Areloina

    137 A.D.3d 892 (N.Y. App. Div. 2016)   Cited 2 times

    Based upon the deposition testimony of the parties, a triable issue of fact exists as to whether the defendant driver contributed to the subject accident by failing to exercise due care to avoid the collision with the plaintiff (see Vehicle and Traffic Law ยง 1146; Dorismond v. Knox, 103 A.D.3d 830, 831, 962 N.Y.S.2d 261; Hernandez v. We Transp., Inc., 67 A.D.3d 967, 968, 888 N.Y.S.2d 777; Vanni v. Bartman, 16 A.D.3d 671, 672, 792 N.Y.S.2d 190). Accordingly, the defendants failed to establish, prima facie, that the defendant driver was free from negligence.

  2. Fitzsimmons v. Long

    136 A.D.3d 738 (N.Y. App. Div. 2016)   Cited 3 times

    Contrary to Long's contention, he failed to demonstrate his prima facie entitlement to judgment as a matter of law. Viewing the evidence submitted by Long in the light most favorable to the plaintiff, it was insufficient to eliminate all triable issues of fact as to whether Long contributed to the accident by failing to keep a proper lookout and failing to exercise due care to avoid the collision (see Vehicle and Traffic Law ยง 1146 ; Dorismond v. Knox, 103 A.D.3d 830, 831, 962 N.Y.S.2d 261 ; Bishop v. Curry, 83 A.D.3d 1431, 1432, 919 N.Y.S.2d 735 ; Hernandez v. We Transp., Inc., 67 A.D.3d 967, 968, 888 N.Y.S.2d 777 ; Ryan v. Budget Rent a Car, 37 A.D.3d 698, 699, 830 N.Y.S.2d 731 ; Vanni v. Bartman, 16 A.D.3d 671, 792 N.Y.S.2d 190 ). Accordingly, the Supreme Court properly denied his motion for summary judgment dismissing the complaint insofar as asserted against him, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

  3. Dorismond v. Knox

    103 A.D.3d 830 (N.Y. App. Div. 2013)   Cited 4 times

    In support of their motion, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Knox's deposition testimony reveals that a triable issue of fact exists as to whether Knox contributed to the happening of the subject accident by failing to exercise due care to avoid the collision with the pedestrian, who was crossing the street at a point other than an intersection or crosswalk ( seeVehicle and Traffic Law ยง 1146; Bishop v. Curry, 83 A.D.3d 1431, 1432, 919 N.Y.S.2d 735;Hernandez v. We Transp., Inc., 67 A.D.3d 967, 968, 888 N.Y.S.2d 777;Allen v. Illes, 55 A.D.3d 1312, 1313, 865 N.Y.S.2d 801;Ryan v. Budget Rent a Car, 37 A.D.3d 698, 699, 830 N.Y.S.2d 731;Vanni v. Bartman, 16 A.D.3d 671, 792 N.Y.S.2d 190;cf. Colpan v. Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124). The defendants' failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of their motion, regardless of the sufficiency of the opposing papers ( see Seidman v. Industrial Recycling Props., Inc., 52 A.D.3d 678, 680, 861 N.Y.S.2d 692;Cendant Car Rental Group v. Liberty Mut. Ins. Co., 48 A.D.3d 397, 398, 852 N.Y.S.2d 190).

  4. Colon v. Gonzalez

    85 A.D.3d 844 (N.Y. App. Div. 2011)

    The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. The defendant failed to sustain her initial burden of demonstrating the absence of a triable issue of fact with respect to whether she exercised due care to avoid the subject accident ( see Hernandez v We Transp., Inc., 67 AD3d 967, 968; Ryan v Budget Rent a Car, 37 AD3d 698, 699; Vanni v Bartman, 16 AD3d 671, 672; Levy v Town Bus Corp., 293 AD2d 452; Charles v Ball, 291 AD2d 367, 367-368). In light of the defendant's failure to meet her initial burden, we need not consider the sufficiency of the plaintiffs opposition papers ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

  5. Ronal Alberto Hernandez v. We Transport, Inc.

    67 A.D.3d 967 (N.Y. App. Div. 2009)   Cited 4 times

    The Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint since the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Based upon the deposition testimony of the parties, a triable issue of fact exists as to whether the defendant driver contributed to the subject accident by failing to exercise due care to avoid a collision with the infant plaintiff, who was crossing the street at a point other than an intersection or crosswalk ( see Vehicle and Traffic Law ยง 1146; Ryan v Budget Rent a Car, 37 AD3d 698, 699; Pareja v Brown, 18 AD3d 636, 637; Vanni v Bartman, 16 AD3d 671, 672).

  6. Milano v. George

    45 A.D.3d 654 (N.Y. App. Div. 2007)   Cited 2 times

    d Village of Lynbrook (hereinafter the Village) for summary judgment dismissing the complaint and all cross claims insofar as asserted against it as the Village established, as a matter of law, that its placement of the stop sign was not a proximate cause of the accident ( see Applebee v State of New York, 308 NY at 508; Mendez v Town of Islip, 307 AD2d 917; Poggiali v Town of Babylon, 219 AD2d 626, 627; Pateman v Asaro, 203 AD2d 346, 346-347; Levitt v County of Suffolk, 166 AD2d 421, 423). The Supreme Court did not err in denying the motion of the defendants James B. George and Transportation Planning Corporation for summary judgment since they failed to meet their prima facie burden of demonstrating the absence of a triable issue of fact as to whether George exercised due care to avoid the subject accident under the circumstances that existed at the time the accident occurred ( see CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Paulin v Needham, 28 AD3d 531; Vanni v Bartman, 16 AD3d 671, 672; Gecaj v DiFiglio, 303 AD2d 548, 549; Charles v Ball, 291 AD2d 367, 367-368; Vehicle and Traffic Law ยง 1146; cf. Johnson v Lovett, 285 AD2d 627).

  7. Moran v. Town of Riverhead

    2015 N.Y. Slip Op. 30479 (N.Y. Sup. Ct. 2015)

    In addition, the evidence submitted by the defendant in support of her motion fails to establish her entitlement to judgment as a matter of law dismissing the complaint on the grounds that the plaintiff's decedent was the sole proximate cause of the accident, and that her claim for Moran's pre-impact terror should be dismissed. A defendant fails to demonstrate a prima facie entitlement to judgment as a matter of law on the grounds that the plaintiff was the sole proximate cause of the accident where he or she fails to demonstrate his or her own freedom from negligence (see Vanni v Bartman, 16 AD3d 671, 792 NYS2d 190 [2d Dept 2005]; Gecaj v DiFiglio, 303 AD2d 548, 756 NYS2d 463 [2d Dept 2003]; Levy v Town Bus Corp., 293 AD2d 452, 739 NYS2d 459 [2d Dept 2002]). In addition, a defendant moving for summary judgment cannot satisfy its initial burden of establishing his or her entitlement thereto merely by pointing to gaps in the plaintiff's case (Coastal Sheet Metal Corp. v Martin Assoc., Inc., 63 AD3d 617, 881 NYS2d 424 [1st Dept 2009]; see also Tsekhanovskayav Starrett City, Inc., 90 AD3d 909, 935 NYS2d 128 [2d Dept 2011]; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836. 931 NYS2d 116 [2d Dept 2011]).

  8. Moran v. Town of Riverhead

    2015 N.Y. Slip Op. 30479 (N.Y. Sup. Ct. 2015)

    In addition, the evidence submitted by the defendant in support of her motion fails to establish her entitlement to judgment as a matter of law dismissing the complaint on the grounds that the plaintiff's decedent was the sole proximate cause of the accident, and that her claim for Moran's pre-impact terror should be dismissed. A defendant fails to demonstrate a prima facie entitlement to judgment as a matter of law on the grounds that the plaintiff was the sole proximate cause of the accident where he or she fails to demonstrate his or her own freedom from negligence (see Vanni v Bartman, 16 AD3d 671, 792 NYS2d 190 [2d Dept 2005]; Gecaj v DiFiglio, 303 AD2d 548, 756 NYS2d 463 [2d Dept 2003]; Levy v Town Bus Corp., 293 AD2d 452, 739 NYS2d 459 [2d Dept 2002]). In addition, a defendant moving for summary judgment cannot satisfy its initial burden of establishing his or her entitlement thereto merely by pointing to gaps in the plaintiff's case (Coastal Sheet Metal Corp. v Martin Assoc., Inc., 63 AD3d 617, 881 NYS2d 424 [1st Dept 2009]; see also Tsekhanovskayav Starrett City, Inc., 90 AD3d 909, 935 NYS2d 128 [2d Dept 2011]; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836. 931 NYS2d 116 [2d Dept 2011]).