Carmen O. Ex Rel. Gloria O. v. James

139 A.D.3d 423, 29 N.Y.S.3d 172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2016
• Docket: 1043 350323/12
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 22, 2015, which denied defendants’ motions for summary judgment dismissing plaintiffs’ complaint, unanimously affirmed, without costs.

Issues of fact exist as to whether defendant drivers used reasonable care to avoid hitting the infant plaintiff (plaintiff), then 15 years old, who was crossing a roadway outside the crosswalk and had stopped in the middle of the road before be ing hit by defendants (see Vehicle and Traffic Law §§ 1146 [a]; 1180 [a]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Romeo v DeGennaro, 255 AD2d 208, 208 [1st Dept 1998]). While plaintiff may bear some responsibility, defendants have not established, as a matter of law, that plaintiff was the sole proximate cause of her injuries, and thus there is an issue of comparative negligence for the jury (Charleston v City of New York, 100 AD3d 471, 472 [1st Dept 2012]).

We have considered the appealing parties’ remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., Friedman, Andrias, Moskowitz and Kahn, JJ.