Sheppeard v. Murci

306 A.D.2d 268, 761 N.Y.S.2d 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated October 15, 2002, which denied his 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 defendant established his prima facie entitlement to judgment as a matter of law by providing sufficient evidence that the infant plaintiff darted out from behind vehicles stopped in traffic, directly into the path of the defendant’s vehicle, leaving the defendant unable to avoid contact (see Sae Hyun Kim v Mirisis, 286 AD2d 761, 762 [2001]; Johnson v Lovett, 285 AD2d 627 [2001]; Carrasco v Monteforte, 266 AD2d 330, 331 [1999]). In response, the plaintiffs failed to present sufficient evidence to raise a triable issue of fact. Contrary to the plaintiffs’ contention, they failed to present evidence that the defendant operated his vehicle in a negligent manner (see Miller v Sisters of Order of St. Dominic, 262 AD2d 373, 374 [1999]; Brown v City of New York, 237 AD2d 398 [1997]), and any assertion that the defendant was driving “too fast” was unsubstantiated and wholly subjective (see Wolf v We Transp., 274 AD2d 514 [2000]). Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Ritter, J.P., Smith, S. Miller and Adams, JJ., concur.