Montesinos v. Cote

46 A.D.3d 774, 848 N.Y.S.2d 329

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Murphy, J.), entered July 28, 2006, which, upon an order of the same court entered May 9, 2006, granting the defendants’ motion for summary judgment dismissing the complaint, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff Lisa Montesinos (hereinafter the injured plaintiff), allegedly sustained serious injuries when she attempted to exit her vehicle and the driver’s door of her car made contact with the trailer portion of a tractor-trailer owned by the defendant R & L Transfer and operated by the defendant Alan D. Cote, Jr. (hereinafter the defendants).

The evidence which the defendants submitted in support of their motion for summary judgment established their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The evidence established that the injured plaintiff violated Vehicle and Traffic Law § 1214 by opening the door on the side of her car adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of her senses, she should have seen (see Williams v Persaud, 19 AD3d 686 [2005]). The evidence which the plaintiffs submitted in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]). Miller, J.P., Crane, Dillon and Balkin, JJ., concur.