Albert v. Klein

15 A.D.3d 509, 789 N.Y.S.2d 684, 2005 N.Y. App. Div. LEXIS 1840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), entered May 12, 2004, as denied that branch of her motion which was for summary judgment on the issue of liability against the defendants Barry H. Klein and Saint-Jean Simean.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law, rendering the sufficiency of the opposition of the respondents Barry H. Klein and Saint-Jean Simean academic (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Valore v McIntosh, 8 AD3d 662 [2004]).

Here, the plaintiff’s admission that she crossed a busy Manhattan intersection while “looking straight ahead and walking for the entire time,” raises a triable issue of fact as to whether she acted with reasonable care given all of the circumstances (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Schmidt v Flickinger Co., 88 AD2d 1068, 1069 [1982]; see also Garner v Fox, 265 AD2d 525 [1999]). Schmidt, J.E, Adams, Santucci and Skelos, JJ., concur.