Balliet v. N. Amityville Fire Dep't

Nicholas Goodman & Associates, PLLC, New York, N.Y. (H. Nicholas Goodmanand Brent M. Reitterof counsel), for appellants.

Stanton, Guzman & Miller, LLP, Franklin Square, N.Y. (Stacey R. Guzmanof counsel), for respondent.

Opinion

In an action to recover damages for personal injuries, the defendants

Taqiyya M. Jenkins and LL Cool J., Inc., appeal from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 5, 2014, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Taqiyya M. Jenkins and LL Cool J., Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.

The plaintiff allegedly was crossing the street in violation of section 1152(a) of the Vehicle and Traffic Law, when he was struck by a vehicle operated by the defendant Taqiyya M. Jenkins and owned by the defendant LL Cool J., Inc. (hereinafter together the Jenkins defendants). In order to cross the roadway, the plaintiff had to cross two eastbound lanes, two westbound lanes, and one center turning lane. The plaintiff walked in between stopped vehicles to cross the two eastbound lanes. The plaintiff was struck by the Jenkins defendants' vehicle, which was traveling eastbound, soon after he entered the center turning lane.

The plaintiff thereafter commenced this action against the Jenkins defendants, among others. The Jenkins defendants

moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiff opposed the motion, while the remaining defendants submitted no opposition. The Supreme Court denied the motion.

Under the circumstances presented here, the Jenkins defendants established their entitlement to judgment as a matter of law by demonstrating that the conduct of the plaintiff in crossing the street at a location other than at an intersection, while emerging from between stopped cars, was the sole proximate cause of the accident, and that Jenkins was free from fault despite the plaintiff's allegation that she failed to avoid a collision with the plaintiff (see Galo v. Cunningham,106 A.D.3d 865, 866, 965 N.Y.S.2d 571; Rodriguez v. Catalano,96 A.D.3d 821, 822, 949 N.Y.S.2d 69; Rosa v. Scheiber,89 A.D.3d 827, 828, 932 N.Y.S.2d 349; Braxton v. Jennings,63 A.D.3d 772, 880 N.Y.S.2d 516; Sheppeard v. Murci,306 A.D.2d 268, 269, 761 N.Y.S.2d 244; Brown v. City of New York,237 A.D.2d 398, 655 N.Y.S.2d 567). In opposition, the plaintiff failed to raise a triable issue of fact (see Galo v. Cunningham,106 A.D.3d at 866, 965 N.Y.S.2d 571; Rosa v. Scheiber,89 A.D.3d at 828, 932 N.Y.S.2d 349; Sheppeard v. Murci,306 A.D.2d at 269, 761 N.Y.S.2d 244; Brown v. City of New York,237 A.D.2d at 398–399, 655 N.Y.S.2d 567), and the remaining defendants did not oppose the motion. Accordingly, the Supreme Court should have granted the Jenkins defendants

' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

In light of our determination, it is not necessary to address the merit of the Jenkins defendants' remaining contention.