Rosa v. Scheiber

• Decision Date: 09 November 2011
• Citation: 89 A.D.3d 827,2011 N.Y. Slip Op. 08136,932 N.Y.S.2d 349
• Parties: Carlos E. ROSA, et al., appellants,v.Steven M. SCHEIBER, et al., respondents.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 827

932 N.Y.S.2d 349

2011 N.Y. Slip Op. 08136

Carlos E. ROSA, et al., appellants,

v.Steven M. SCHEIBER, et al., respondents.

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

Nov. 9, 2011.

OPINION TEXT STARTS HEREJakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, St. James, N.Y. (Frank M. Maffei, Jr., of counsel), for appellants.Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Mark J. Volpi of counsel), for respondents.

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, Suffolk County (Gazzillo, J.), dated April 23, 2010, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the injured plaintiff walked out from behind a parked trailer, not within a crosswalk, directly into the path of the defendants' moving vehicle, leaving the defendant driver unable to avoid contact with the injured plaintiff ( see Vehicle and Traffic Law § 1152[a]; Wolbe v. Fishman, 29 A.D.3d 785, 815 N.Y.S.2d 208; Ledbetter v. Johnson, 27 A.D.3d 698, 810 N.Y.S.2d 914; Mancia v. Metropolitan Tr. Auth. Long Is. Bus, 14 A.D.3d 665, 790 N.Y.S.2d 31; Sheppeard v. Murci, 306 A.D.2d 268, 761 N.Y.S.2d 244; Johnson v. Lovett, 285 A.D.2d 627, 728 N.Y.S.2d 753). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant driver operated the vehicle in a negligent manner ( see Vehicle and Traffic Law § 1146[a] ). The plaintiffs' contention that the evidence demonstrated that the driver should have avoided the impact because he should have seen the injured plaintiff when he was 10 to 15 feet away is without merit ( see Miller v. Sisters of Order of St. Dominic, 262 A.D.2d 373, 374, 691 N.Y.S.2d 168). Furthermore, under the circumstances of this case, the injured plaintiff's estimate that the driver was traveling at “[m]aybe 30 miles an hour” was speculative ( see Batts v. Page, 51 A.D.3d 833, 858 N.Y.S.2d 748; Meliarenne v. Prisco, 9 A.D.3d 353, 780 N.Y.S.2d 30).

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

PRUDENTI, P.J., SKELOS, BALKIN and SGROI, JJ., concur.