Opinion
10-03-2017
A.C., an Infant, by Her Mother and Natural Guardian NAMINATA C., et al., Plaintiffs–Appellants, v. Festus F. AJISOGUN, Defendant–Respondent.
Law Offices of Daniel Chavez, Bronx (Elizabeth M. Meyerson of Counsel), for appellants. Richard T. Lau & Associates, Jericho (Nancy S. Goodman of Counsel), for respondent.
Law Offices of Daniel Chavez, Bronx (Elizabeth M. Meyerson of Counsel), for appellants.
Richard T. Lau & Associates, Jericho (Nancy S. Goodman of Counsel), for respondent.
"A driver in an area where children are playing need not exercise ‘extreme care or caution,’ although [he] must exercise the care that a reasonably prudent person would exercise under the circumstances" ( DeJesus v. Alba, 63 A.D.3d 460, 463, 882 N.Y.S.2d 12 [1st Dept.2009], affd. 14 N.Y.3d 860, 902 N.Y.S.2d 27, 928 N.E.2d 409[2010] ). Here, defendant established his entitlement to judgment as a matter of law by producing evidence that he was not speeding, driving only about 5–10 miles per hour, and that the infant plaintiff ran out from between two parked cars into the side of his vehicle (see Fatumata B. v. Pioneer Transp. Corp., 118 A.D.3d 486, 486, 988 N.Y.S.2d 31 [1st Dept.2014] ; DeJesus, 63 at 463, 882 N.Y.S.2d 12 ; Yahya v. Kahan, 136 A.D.3d 644, 645, 23 N.Y.S.3d 901 [2d Dept.2016] ).
No issues of fact exist as to whether defendant's speed was excessive under the circumstances (see DeJesus, 63 A.D.3d at 464, 882 N.Y.S.2d 12 ; Fatumata B., 118 A.D.3d at 487, 988 N.Y.S.2d 31 ). Contrary to plaintiffs' argument, Ferrer v. Harris ,55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231 (1982) does not stand for the broad proposition that a driver's negligence is always a question of fact when the driver was aware that children were possibly present. Plaintiffs failed to raise a triable issue of fact as to whether defendant ought to have seen the infant plaintiff before the impact. Accordingly, the point of impact was not a material issue of fact warranting denial of summary judgment (see Hinkle v. Trejo, 89 A.D.3d 631, 934 N.Y.S.2d 12 [1st Dept.2011], lv. denied 19 N.Y.3d 807, 2012 WL 2401463 [2012] ).
We have considered plaintiffs' remaining arguments and find them unavailing.
SWEENY, J.P., MOSKOWITZ, KAHN and GESMER, JJ., concur.