Lum v. Wallace
| Decision Date | 23 February 2010 |
| Parties | Yuen LUM, respondent, v. Norma Iris WALLACE, appellant. |
| Court | New York Supreme Court — Appellate Division |
Harvey Gladstein & Partners, LLC, New York, N.Y. (Anthony J. Spiga and Jan B. Rothman of counsel), for appellant.
Morelli Ratner P.C., New York, N.Y. (David S. Ratner of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the defendant appealsfrom an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 22, 2009, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
Under the circumstances of this case, the plaintiff failed to establish, as a matter of law, that he was free from comparative negligence, as he failed to state in his initial affidavit that he entered the crosswalk where the accident occurred with reasonable care ( see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690; Lopez v. Garcia, 67 A.D.3d 558, 889 N.Y.S.2d 174; Sale v. Lee, 49 A.D.3d 854, 853 N.Y.S.2d 888; Cator v. Filipe, 47 A.D.3d 664, 850 N.Y.S.2d 510; Schmidt v. Flickinger Co., 88 A.D.2d 1068, 1068-1069, 452 N.Y.S.2d 767). The Supreme Court erred in considering the plaintiff's reply affidavit in which he stated that prior to crossing he looked left and right, and saw no vehicle coming ( see David v. Bryon, 56 A.D.3d 413, 414-415, 867 N.Y.S.2d 136; Barrera v. MTA Long Is. Bus, 52 A.D.3d 446, 859 N.Y.S.2d 483). The plaintiff's failure to make a prima facie showing required the denial of the motion, regardless of the sufficiency of the opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
In light of our determination, we need not reach the defendant's remaining contentions.
To continue reading
Request your trial
-
Cohn v. Khan
...Singh v. Doo Jae Lee, 76 A.D.3d 555, 907 N.Y.S.2d 252; Roman v. A1 Limousine, Inc., 76 A.D.3d 552, 907 N.Y.S.2d 251; Yuen Lum v. Wallace, 70 A.D.3d 1013, 897 N.Y.S.2d 454; see also Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d ...
-
Shenkerman v. Goycoechea
...make a showing as to lack of comparative fault to carry his or her prima facie burden on summary judgment. In Lum v. Wallace, 70 A.D.3d 1013, 897 N.Y.S.2d 454 (2d Dept. 2010), relied upon by the Omega Defendants, the Second Department held that “ [u]nder the circumstances of this case, the ......
-
Martinez v. Kreychmar
...58 A.D.3d 592, 592–593, 871 N.Y.S.2d 372; Jermin v. APA Truck Leasing Co., 237 A.D.2d 255, 655 N.Y.S.2d 406; cf. Yuen Lum v. Wallace, 70 A.D.3d 1013, 1014, 897 N.Y.S.2d 454 [plaintiff failed to state in his affidavit that he had “entered the crosswalk where the accident occurred with reason......
-
Roman v. A1 Limousine, Inc.
...in support of his motion failed to establish, as a matter of law, that he was free from comparative negligence ( see Lum v. Wallace, 70 A.D.3d 1013, 1014, 897 N.Y.S.2d 454; Cali v. Mustafa, 68 A.D.3d 700, 701, 888 N.Y.S.2d 912; Gideon v. Flatlands Beverage Distrib., Inc., 59 A.D.3d 596, 872......