Wright v. Seidner

291 A.D.2d 555, 737 N.Y.S.2d 664, 2002 N.Y. App. Div. LEXIS 1971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered August 16, 2000, which granted the motion of the defendants Frederick Von Mach and Jaime A. Georges Painting, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

On September 5, 1997, the defendant Frederick Von Mach was operating a van owned by his employer, the defendant Jaime A. Georges Painting, Inc. (hereinafter Georges Painting). Von Mach was stopped in traffic in the right-hand southbound travel lane of Main Street in New Rochelle. The plaintiff was standing in the parking lane adjacent to the lane in which Von Mach had stopped the van, waiting to cross Main Street. At some point, Von Mach allegedly gestured, and the plaintiff started to cross the street. When he walked in front of the van, he could not see around it. He took a step beyond the van with one foot and at the same time stuck his head out to look around the van to see if it was safe to proceed into the left southbound traffic lane. When he did so, he was struck by a vehicle operated by the defendant Michael A. Seidner as it passed Von Mach’s van.

Contrary to the plaintiffs contention, the Supreme Court properly granted the respondents’ motion for summary judgment. The respondents’ established, prima facie, that the plaintiff did not rely on Von Mach’s alleged gesture in crossing the street (see, Valdez v Bernard, 123 AD2d 351, 352), and in his opposition the plaintiff failed to raise a triable issue of fact. Florio, J.P., Krausman, Friedmann and Adams, JJ., concur.