McFadden v. Bruno

37 A.D.3d 177, 829 N.Y.S.2d 74

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 5, 2006, which denied plaintiffs motion for partial summary judgment as to liability, unanimously affirmed, without costs.

Plaintiff was injured when she rode her bicycle into the door of a parked car after the individual defendant had opened it in the cyclist’s path while exiting. Plaintiffs contradictory statements regarding the speed at which she was traveling, as well as the conflicting testimony regarding how far the door was open when she rode into it, raise triable issues regarding credibility and comparative fault that are not appropriate for resolution on a motion for summary judgment (see Bruscella v Abbondondolo, 270 AD2d 443 [2000]). Concur—Andrias, J.P., Marlow, Williams, Buckley and Malone, JJ.