Charles v. Ball

Appellate Division of the Supreme Court of New York

Charles v. Ball

291 A.D.2d 367, 737 N.Y.S.2d 116, 2002 N.Y. App. Div. LEXIS 1303

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 4, 2002

StatusPublished

Cited by9 cases

This text of 291 A.D.2d 367 (Charles v. Ball) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Charles v. Ball, 291 A.D.2d 367, 737 N.Y.S.2d 116, 2002 N.Y. App. Div. LEXIS 1303 (N.Y. Ct. App. 2002).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated March 27, 2001, as denied her motion for summary judgment dismissing the complaint.

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

At approximately 4:50 p.m. on July 23, 1999, the six-year-old plaintiff Laurisha Charles allegedly was injured when she attempted to cross a street and came into contact with a vehicle owned and operated by the defendant. The defendant testified at her examination before trial and stated in an affidavit that, just before the accident, she observed the infant plaintiff standing in the roadway on her right side between two parked cars, talking to someone across the street. Upon seeing the infant plaintiff, the defendant slowed down to about 10 miles per hour, but could not recall whether or not she sounded her horn. When the defendant was approximately V2 to 1 car length away, the infant plaintiff suddenly lowered her head and darted into the street, striking the front right fender of the defendant’s vehicle.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint since she [368]*368failed to sustain her initial burden of demonstrating the absence of a triable issue of fact as to whether she exercised due care to avoid the accident (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Ruocco v Mulhall, 281 AD2d 406; Garner v Fox, 265 AD2d 525; Calico v Phillips, 63 AD2d 955; cf., Vehicle and Traffic Law § 1146; Miller v Sisters of Order of St. Dominic, 262 AD2d 373). The defendant’s failure to make such a prima facie showing required the denial of her motion, regardless of the sufficiency of the plaintiffs’ opposing papers (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., supra at 853). Altman, J.P., S. Miller, Cozier and Prudenti, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated March 27, 2001, as denied her motion for summary judgment dismissing the complaint.

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

At approximately 4:50 p.m. on July 23, 1999, the six-year-old plaintiff Laurisha Charles allegedly was injured when she attempted to cross a street and came into contact with a vehicle owned and operated by the defendant. The defendant testified at her examination before trial and stated in an affidavit that, just before the accident, she observed the infant plaintiff standing in the roadway on her right side between two parked cars, talking to someone across the street. Upon seeing the infant plaintiff, the defendant slowed down to about 10 miles per hour, but could not recall whether or not she sounded her horn. When the defendant was approximately V2 to 1 car length away, the infant plaintiff suddenly lowered her head and darted into the street, striking the front right fender of the defendant’s vehicle.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint since she [368]*368failed to sustain her initial burden of demonstrating the absence of a triable issue of fact as to whether she exercised due care to avoid the accident (see, CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Ruocco v Mulhall, 281 AD2d 406; Garner v Fox, 265 AD2d 525; Calico v Phillips, 63 AD2d 955; cf., Vehicle and Traffic Law § 1146; Miller v Sisters of Order of St. Dominic, 262 AD2d 373). The defendant’s failure to make such a prima facie showing required the denial of her motion, regardless of the sufficiency of the plaintiffs’ opposing papers (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., supra at 853). Altman, J.P., S. Miller, Cozier and Prudenti, JJ., concur.

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291 A.D.2d 367, 737 N.Y.S.2d 116, 2002 N.Y. App. Div. LEXIS 1303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-v-ball-nyappdiv-2002.

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