Miller v. Sisters of the Order of St. Dominic

262 A.D.2d 373, 691 N.Y.S.2d 168, 1999 N.Y. App. Div. LEXIS 6363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Golia, J.), dated September 10, 1998, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff was allegedly injured when he was hit by a car owned by the defendant Sisters of the Order of St. Dominic and driven by the defendant Sister Marie Brady. The testimony of the only two nonparty eyewitnesses to the accident demonstrates that suddenly, and without any warning, the plaintiff walked or ran out from between a stopped bus and a parked taxi cab into Sister Brady’s lane of traffic, approximately 10 to 15 feet from her car, which was traveling about 20 to 25 miles per hour. There is no evidence that Sister Brady operated the car in a negligent manner, and it is uncontested that neither Sister Brady, nor the two eyewitnesses in her car, saw the plaintiff until one or two seconds before the car struck him.

In light of this evidence, the defendants were entitled to summary judgment (see, Rucker v Fifth Ave. Coach Lines, 15 NY2d 516, 517-518, cert denied 382 US 815; Gonzalez v 98 Mag Leasing Corp., 261 AD2d 508; Brown v City of New York, 237 AD2d 398; Kiernan v Hendrick, 116 AD2d 779, 780-781). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.