Opinion
2013-03-19
Saydi POLANCO, Plaintiff–Respondent v. Mallam Y. ALHASSAN, et al., Defendants–Appellants, Alan Bell, Defendant.
Cobert, Haber & Haber, Garden City (David C. Haber of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondent.
Cobert, Haber & Haber, Garden City (David C. Haber of counsel), for appellants. Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered December 21, 2011, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.
Summary judgment on the issue of liability was improperly granted in this action where plaintiff pedestrian was injured when she was struck by a taxicab owned and operated by defendants-appellants. The record presents triable issues of fact as to whether plaintiff was in the crosswalk at the time of the accident. Both plaintiff and defendant driver testified that they looked and that the intersection was clear before they made their respective movements, and neither saw the other until the moment of impact. Although plaintiff testified that she was walking across the intersection within the crosswalk when the accident occurred, the police accident report indicated that she was rushing across the street. Moreover, defendant driver testified that at the time of impact, the front of the car, which was the part of the vehicle that struck plaintiff, was past the crosswalk ( see Wein v. Robinson, 92 A.D.3d 578, 939 N.Y.S.2d 364 [1st Dept. 2012]; Villaverde v. Santiago–Aponte, 84 A.D.3d 506, 922 N.Y.S.2d 369 [1st Dept. 2011] ).