Opinion
2019-07140 Index No. 517200/16
06-24-2020
Arelis CANDELARIO, Respondent, v. Barry GOLD, et al., Appellants.
Malapero Prisco & Klauber LLP, New York, N.Y. (Raymond J. Malapero and Andrea C. Soto of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (Joseph P. Stoduto of counsel), for respondent.
Malapero Prisco & Klauber LLP, New York, N.Y. (Raymond J. Malapero and Andrea C. Soto of counsel), for appellants.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (Joseph P. Stoduto of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when the defendant Barry Gold, who was operating a vehicle owned by the defendant Twinco Supply Corp., pulled out of a parking space and into the lane of travel, colliding with the plaintiff's vehicle. The plaintiff thereafter commenced this action to recover damages for personal injuries. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence, contributory negligence, and culpable conduct of the plaintiff. The Supreme Court granted the plaintiff's motion and the defendants appeal.
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that Gold violated Vehicle and Traffic Law §§ 1162 and 1143 by pulling his vehicle out of the parking space and into moving traffic before it was reasonably safe to do so (see Green v. Masterson , 172 A.D.3d 826, 827, 98 N.Y.S.3d 443 ; Jacino v. Sugerman , 10 A.D.3d 593, 595, 781 N.Y.S.2d 663 ). The plaintiff also demonstrated, prima facie, that she was not at fault in the happening of the accident. The plaintiff testified at her deposition that she saw the defendants' vehicle in the parking space as she approached at a speed of between 15 and 20 miles per hour, and that it was suddenly "on top of [her]" and "hitting [her]" (see Green v. Masterson , 172 A.D.3d at 827, 98 N.Y.S.3d 443 ). In opposition, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, any minor inconsistency in the plaintiff's testimony as to the exact area of the street in which the accident occurred, a fact that was not material to the issue of fault, did not raise a bona fide issue as to the plaintiff's credibility (see Coughlin v. Bartnick , 293 A.D.2d 509, 510, 740 N.Y.S.2d 394 ).
Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence, contributory negligence, and culpable conduct of the plaintiff.
BALKIN, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.