Lopez v. Beltre

• Citation: 59 A.D.3d 683,2009 NY Slip Op 01449,873 N.Y.S.2d 726
• Decision Date: 24 February 2009
• Docket Number: 2008-05667.
• Parties: OSCAR LOPEZ et al., Appellants, v. RAMON C. BELTRE, Defendant, and VILLAGE OF PORT CHESTER, Respondent.
• Court: New York Supreme Court Appellate Division

59 A.D.3d 683

873 N.Y.S.2d 726

2009 NY Slip Op 01449

OSCAR LOPEZ et al., Appellants, v. RAMON C. BELTRE, Defendant, and VILLAGE OF PORT CHESTER, Respondent.

2008-05667.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 24, 2009.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered June 3, 2008, as granted the motion of the defendant Village of Port Chester for summary judgment dismissing the complaint insofar as asserted against it and, in effect, denied, as academic, those branches of their cross motion which were to dismiss the affirmative defenses in the answer of the defendant Village of Port Chester that the infant plaintiff was comparatively negligent and that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is modified, on the law, by deleting the provisions thereof granting the motion of the defendant Village of Port Chester for summary judgment dismissing the complaint insofar as asserted against it and, in effect, denying, as academic, that branch of the plaintiffs' cross motion which was for summary judgment dismissing the affirmative defense in the answer of the defendant Village of Port Chester that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and substituting therefor provisions denying the motion of the defendant Village of Port Chester for summary judgment and granting that branch of the plaintiffs' cross motion which was to dismiss the affirmative defense of the defendant Village of Port Chester that the infant plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d); as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

The infant plaintiff was crossing the street after school when he was struck by a vehicle owned and operated by the defendant Ramon Beltre. Beltre was attempting to make a left turn onto the southbound lane of Don Bosco Place from the west-bound lane of Purdy Avenue and the plaintiff was attempting to cross Don Bosco Place when the collision occurred. The intersection was governed by traffic light signals, and the defendant Village of Port Chester (hereinafter the Village) stationed a crossing guard on Don Bosco Place at its intersection with Purdy Avenue. As a result of the accident, the infant plaintiff and his mother, suing derivatively, commenced this action. The Village moved for summary judgment dismissing the complaint insofar as asserted against it, contending that its crossing guard was not negligent and that Beltre's negligence was the sole proximate cause of the accident. The plaintiffs cross-moved, inter alia, to dismiss the affirmative defenses that the infant plaintiff was comparatively negligent and that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court granted the Village's motion and, in effect, denied the plaintiffs' cross motion as academic. We modify.

On a motion for summary judgment, the court's function is to determine whether material factual issues exist, not to resolve such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007]). A motion for summary judgment "should not be granted where the facts are in dispute, where...