Onofre v. City of New York

2021 NY Slip Op 00373

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 2021
• Docket: Index No. 20724/15E Appeal No. 12935 Case No. 2020-4693
• Status: Published

Opinion

Onofre v City of New York (2021 NY Slip Op 00373)

Onofre v City of New York

2021 NY Slip Op 00373

Decided on January 21, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 21, 2021
Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ.

Index No. 20724/15E Appeal No. 12935 Case No. 2020-4693

[*1]Jaime Onofre, Plaintiff-Appellant,

v

The City of New York et al., Defendants-Respondents.

Elefterakis, Elefterakis & Panek, New York (Oliver R. Tobias of counsel), for appellant.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 6, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established prima facie that the individual defendant, who was operating a snowplow and removing snow from the street when he allegedly struck the parked car in which plaintiff was seated, did not act in conscious "disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1105 [2015] [internal quotation marks omitted]; Vehicle & Traffic Law § 1103[b]). The driver testified that he exercised his judgment before proceeding down the street and that he believed he had at least a foot of clearance from the parked cars, and plaintiff himself testified that he saw the driver moving slowly, i.e., at a speed of about five miles an hour (see Harris v Hanssen, 161 AD3d 1531, 1533 [4th Dept 2018]).

In opposition, plaintiff failed to raise an issue of fact. His argument that the mere decision to proceed down the narrow street with a large rear loader, rather than a pick-up truck outfitted with a snowplow, manifested the driver's recklessness, is unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 21, 2021