GELSTER, DALE R. v. JAOUDE, MARIA L.

81 A.D.3d 1297, 916 N.Y.S.2d 550, 2011 NY Slip Op 00861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2011
• Docket: CA 10-01970
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered June 11, 2010 in a personal injury action. The order denied the motion of defendant for summary judgment.

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

Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defendant met her initial burden by establishing that plaintiff, a pedestrian, unexpectedly darted into the path of her vehicle (see Jellal v Brown, 37 AD3d 179 [2007]; Sheppeard v Murci, 306 AD2d 268 [2003]; Ash v McNamara, 288 AD2d 956 [2001], lv denied 97 NY2d 612 [2002]). In opposition to the motion, however, plaintiff raised a triable issue of fact whether defendant was speeding at the time of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to defendant’s contention, the deposition testimony of a non-party witness regarding defendant’s speed was not so inconsistent or speculative as to render it insufficient to defeat the motion (cf. Sheppeard, 306 AD2d 268; Wolf v We Transp., 274 AD2d 514 [2000]). Present — Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.