Schager v. Lino Bordi, Inc.

2 A.D.3d 828, 769 N.Y.S.2d 385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 2003
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated February 6, 2003, which denied their motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

At 2:45 p.m., on November 6, 2001, the then 17-year-old plaintiff Mark Justin Schager (hereinafter Schager), a pedestrian, was crossing Willis Avenue at its intersection with Lafayette Street in Williston Park, when he was struck by a 33,000-pound truck operated by the defendant Louis J. Oliveri, owned by the defendant Lino Bordi, Inc., and allegedly registered to the defendant Oxford Truck Leasing Corp.

The plaintiffs’ motion for summary judgment on the issue of liability was properly denied. Issues of fact exist as to whether Oliveri exercised reasonable care in an effort to comply with Vehicle and Traffic Law § 1126 (a), thereby excusing his violation of the statute (see Espinal v Sureau, 262 AD2d 523 [1999]), or whether Schager was comparatively negligent in causing his injuries (see Dragunova v Dondero, 305 AD2d 449 [2003]; cf. Tran v Nowak, 245 AD2d 1083 [1997]). Smith, J.P., Luciano, H. Miller and Townes, JJ., concur.