Opinion
2011-10-25
Yvonne CARSWELL, Plaintiff–Respondent,v.Tahiru BANDA, et al., Defendants–Appellants.
Marjorie E. Bornes, New York, for appellants.Law Office of Robert A. Flaster, P.C., New York (Jonathan A. Fier of counsel), for respondent.
Marjorie E. Bornes, New York, for appellants.Law Office of Robert A. Flaster, P.C., New York (Jonathan A. Fier of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered December 29, 2010, which, in an action for personal injuries, granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff pedestrian alleges that she was injured when, while crossing the street within the crosswalk and with the traffic light in her favor, she was struck by defendants' taxicab. In contrast, defendant driver stated that he had a green light with a left-turn signal, that his vehicle was past the crosswalk, and that plaintiff was distracted by talking on her cell phone when the accident occurred. These conflicting accounts raise triable issues of fact as to whether plaintiff had the right-of-way and was in the crosswalk at the time of the accident and whether defendant driver failed to exercise due care to avoid the accident or was negligent in any manner ( see Villaverde v. Santiago–Aponte, 84 A.D.3d 506, 922 N.Y.S.2d 369 [2011]; see also Marquis v. Eisenstein, 5 A.D.3d 741, 773 N.Y.S.2d 596 [2004] ).