Practice point: The Appellate Division reversed the motion court and granted plaintiff's motion in this action for damages for personal injuries sustained when plaintiff was struck by an ambulette. The Appellate Division found that plaintiff established that she waited for the pedestrian
signal to be in her favor prior to entering the crosswalk, and that she
exercised due care by looking in both directions and
for any vehicles turning left before she entered the crosswalk. While crossing at a steady normal pace, and having almost
completed crossing in the crosswalk, plaintiff was
struck by the vehicle operated by the defendant driver, which came from
behind plaintiff and failed to yield the right-of-way. In opposition, defendants failed to raise a triable issue of fact.
Student note: The Appellate Division also found that, contrary to defendants' contentions, the motion was
not premature. Defendants failed to demonstrate that additional
discovery may lead to relevant evidence or that the facts essential to
justify opposition to the motion were exclusively within the knowledge
and control of plaintiff. The mere hope or speculation that evidence sufficient to defeat a
motion for summary judgment may be uncovered by further discovery is an
insufficient basis for denying the motion.
Case: Chou v. Ocean Ambulette Serv., Inc., NY Slip Op 06876 (2d Dept. 2015)
Here is the decision.
Monday's issue: Statute of limitations in a breach of fiduciary action.
