Practice point: Plaintiff established entitlement to judgment on liability as a
matter of law by submitting evidence demonstrating that she was crossing
the street, within the crosswalk, with a "walk" sign in her favor, when
defendants' vehicle, which was making a left turn, struck her. The affidavits from the nonparty eyewitnesses and
the police report confirm plaintiff's version of the accident.
Defendants failed to raise a triable issue of fact as
to comparative negligence. Plaintiff averred that she looked both ways
before entering the intersection and continued to look for traffic as
she crossed the street, and that she could not have avoided the accident
because she only noticed defendants' vehicle, which was moving quickly,
a "split second" prior to being struck. Contrary to the assertion of
defendant driver, the position of plaintiff's body after impact is not
probative as to whether she was walking in the cross-walk prior to being
struck.
Student note: Plaintiff's motion was considered one for renewal, since she
submitted a properly notarized affidavit of a nonparty witness, thereby
correcting an error in the original papers. The court has
discretion to relax the requirement that a motion to renew be based on
newly discovered evidence or evidence not previously available, and to
grant such a motion in the interest of justice, absent prejudice to the
opposing party resulting from any delay.
Case: Hines v. New York City Tr. Auth., NY Slip Op 08527 (1st Dept. 2013).
Here is the decision.
Thursday's issue: Liability for an independent contractor's negligence.
