Martinez v. Kreychmar

• Decision Date: 17 May 2011
• Citation: 923 N.Y.S.2d 648,2011 N.Y. Slip Op. 04214,84 A.D.3d 1037
• Parties: Janet MARTINEZ, appellant,v.Svetlana KREYCHMAR, respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1037
923 N.Y.S.2d 648
2011 N.Y. Slip Op. 04214

Janet MARTINEZ, appellant,
v.
Svetlana KREYCHMAR, respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.

[923 N.Y.S.2d 648]

Peter D. DiBona, P.C., Brooklyn, N.Y., for appellant.Harris, King & Fodera (Mauro Lilling Naparty, LLP, Great Neck, N.Y. [Caryn L. Lilling, Katherine Herr Solomon, and Jennifer Ettenger], of counsel), for respondent.REINALDO E. RIVERA, J.P., PETER B. SKELOS, ANITA R. FLORIO, and LEONARD B. AUSTIN, JJ.

[84 A.D.3d 1038] In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 22, 2010, which denied her 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 granted.

In support of her motion for summary judgment on the issue of liability, the plaintiff pedestrian demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendant's car failed to yield the right-of-way and struck her at a high rate of speed. The plaintiff further demonstrated that, exercising due care, she had looked in all directions to check for approaching vehicles before she entered the intersection. Contrary to the Supreme Court's conclusion, this proof was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability, including her freedom from

[923 N.Y.S.2d 649]

comparative fault ( see Rosenblatt v. Venizelos, 49 A.D.3d 519, 520, 853 N.Y.S.2d 578; see also Lariviere v. New York City Tr. Auth., 82 A.D.3d 1165, 920 N.Y.S.2d 231; Qamar v. Kanarek, 82 A.D.3d 860, 918 N.Y.S.2d 360; Klee v. Americas Best Bottling Co., Inc., 60 A.D.3d 911, 875 N.Y.S.2d 270; Cavitch v. Mateo, 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 reasonable care”]; see generally Roman v. A1 Limousine, Inc., 76 A.D.3d 552, 907 N.Y.S.2d 251). As the defendant failed to offer any evidence in opposition, the plaintiff was entitled to summary judgment on the issue of liability.

Moreover, the motion for summary judgment was not...