Mazza v. Manzella

49 A.D.3d 609, 854 N.Y.2d 424

Opinion

The defendant made a prima facie showing of entitlement to judgment as a matter of law by presenting proof that the infant plaintiff, who was riding a motorized bicycle, exited a driveway and collided into the defendant’s motor vehicle in violation of Vehicle and Traffic Law §§ 1143 and 1173 (see Yasinosky v Lenio, 28 AD3d 652, 653 [2006]; Lallemand v Cook, 23 AD3d 533 [2005]; Trzepacz v Jara, 11 AD3d 531 [2004]; Ferrara v Castro, 283 AD2d 392 [2001]). In opposition, the plaintiffs failed to raise a triable issue of fact. The fact that the infant plaintiff did not see the defendant’s approaching car does not excuse the infant plaintiffs conduct (see Ferrara v Castro, 283 AD2d at 393; Bolta v Lohan, 242 AD2d 356 [1997]). Furthermore, the infant plaintiffs affidavit failed to raise a triable issue of fact regarding the defendant’s alleged failure to take evasive action (see McNamara v Fishkowitz, 18 AD3d 721, 722 [2005]; Meliarenne v Prisco, 9 AD3d 353, 354 [2004]; Lupowitz v Fogarty, 295 AD2d 576 [2002]). Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Spolzino, J.P., Santucci, Dillon and Balkin, JJ., concur.