Opinion
2011-10-20
Mamadou SAKHO, etc., et al., Plaintiffs–Respondents,v.The CITY OF NEW YORK, et al., Defendants,Mary Feliciano, Defendant–Appellant.
Kay & Gray, P.C., Westbury (Katie A. Walsh of counsel), for appellant.Adebola O. Asekun, New York, for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 16, 2010, which, in this action to recover for personal injuries sustained by the infant plaintiff when he was allegedly struck by a car driven by defendant Mary Feliciano, denied Feliciano's motion for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against Feliciano.
There is no issue of fact as to whether Feliciano acted prudently under the circumstances. Feliciano testified that she was traveling 10 miles per hour when she saw plaintiff, 13 years old at the time, and another child playing on the sidewalk. Upon seeing the children and fearing that they would run onto the street, Feliciano applied her brakes to slow down. However, plaintiff entered the street outside of the crosswalk and was pushed into Feliciano's car. Plaintiff testified that he did not remember what happened after he entered the street and heard his name being called. However, according to the police accident report, plaintiff stated that Feliciano's car hit him after he ran onto the street. Under either scenario, there is no evidence that Feliciano's car was moving at a faster rate of speed than what she claimed or that she was otherwise negligent. Furthermore, plaintiffs failed to introduce any evidence that the infant plaintiff's injuries were inconsistent with defendant's testimony of how the accident occurred. Accordingly, Feliciano was entitled to summary judgment dismissing the complaint as against her ( see DeJesus v. Alba, 63 A.D.3d 460, 882 N.Y.S.2d 12 [2009], affd. 14 N.Y.3d 860, 902 N.Y.S.2d 27, 928 N.E.2d 409 [2010]; Jellal v. Brown, 37 A.D.3d 179, 830 N.Y.S.2d 510 [2007] ).
TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, RENWICK, JJ., concur.