Allen v. Illes

55 A.D.3d 1312, 865 N.Y.S.2d 801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered September 6, 2007 in a personal injury action. The order denied the motion of defendants for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she was struck by an automobile operated by Justin T. liles (defendant) and owned by defendant Thomas E. Ules while she was crossing a street. According to defendants, defendant was operating his vehicle in a safe and reasonable manner, and the accident was the result of plaintiffs own negligence. Supreme Court properly denied the motion of defendants seeking summary judgment dismissing the complaint inasmuch as they failed to demonstrate their entitlement to judgment as a matter of law. Rather, the evidence submitted by defendants raises triable issues of fact “whether the plaintiff was comparatively negligent for, inter alia, failing to exercise due care when crossing the street at a point other than an intersection or a crosswalk, and whether the defendant . . . contributed to the accident by failing to exercise due care in operating [his] vehicle” (Ryan v Budget Rent a Car, 37 AD3d 698, 699 [2007]; see Ruocco v Mulhall, 281 AD2d 406 [2001]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Green, JJ.