Opinion
No. 144 SSM 16.
Decided May 6, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 9, 2009. The Appellate Division reversed, on the law, an order of the Supreme Court, Bronx County (Nelson S. Roman, J.), which had denied a motion by defendants for summary judgment dismissing the complaint, and granted the motion. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Plaintiff sought damages for personal injuries she allegedly sustained when she walked or ran into a street when she was 16 years old and collided with a vehicle driven by defendant Ynes Alba. The police report of the accident stated, in pertinent part, "pedestrian jumped out from between two cars." The Appellate Division concluded that had plaintiff not entered the street without warning there would have been no accident; that there was no issue of fact whether defendant driver acted prudently in light of testimony of both the driver and a nonparty witness that defendant had slowed her vehicle prior to coming in contact with plaintiff, who acknowledged that the impact was "light"; and that the factual scenario warranted dismissal of the complaint.
DeJesus v Alba, 63 AD3d 460, affirmed.
Seligson, Rothman Rothman, New York City ( Martin S. Rothman of counsel), for appellant. Picciano Scahill, P.C., Westbury ( Gilbert J. Hardy of counsel), for respondents.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. The Appellate Division properly concluded that no triable issues of fact existed whether defendant driver acted prudently under the circumstances.