Practice point: Plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that defendant negligently failed to yield the right-of-way, and that the injured plaintiff was free from comparative fault. In support of their motion, plaintiffs submitted the the injured plaintiff's deposition, during which she testified that she stopped at the intersection, observed traffic and the pedestrian "WALK" signal in her favor before entering the street, and crossed within the crosswalk while the pedestrian crossing signal remained in her favor. She also testified that she was more than halfway across the street, closer to the other side and still within the crosswalk, when she was struck on the right side by the defendant's vehicle as it turned left into the intersection, causing her to fall to the ground. This testimony demonstrated that the injured plaintiff entered the intersection after exercising due care. Plaintiffs submitted the defendant's deposition testimony in which he testified that he did not remember looking for pedestrians when he was stopped on before making the left turn, he did not see the injured plaintiff until he saw her on top of his vehicle's hood even though he had an unobstructed view of the roadway, and, after the impact, the injured plaintiff slid off the front of his vehicle to the ground. Although the defendant later testified that the injured plaintiff was not within the crosswalk at the time of impact, this claim was speculative in view of his admission that he did not see the injured plaintiff until the impact had already occurred.
Student note: To prevail on summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident. Once the movant establishes entitlement to judgment as a matter of law, the burden shifts to the opposing party to submit sufficient evidence to raise a triable issue of fact as to the movant's comparative fault.
Case: France Herly Bien-Aime v. Clare, NY Slip Op 00713 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Supplemental bills of particulars and discovery rights.
