Santo-Perez v Enterprise Leasing Co.

Santo-Perez v Enterprise Leasing Co. 2015 NY Slip Op 02567 Decided on March 26, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2015
Gonzalez, P.J., Acosta, Moskowitz, Richter, Feinman, JJ.
14638 309974/11

[*1] Roberto Santo-Perez, Plaintiff-Appellant,

v

Enterprise Leasing Company, et al., Defendants, Anthony A. Hill, Defendant-Respondent.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.

Carman, Callahan & Ingham, LLP, Farmingdale (Michael M. Burkart of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about November 19, 2013, which granted defendant Anthony A. Hill's motion for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, without costs, and the motion denied.

While the fact that plaintiff was crossing the street on foot outside of the crosswalk, in violation of Vehicle and Traffic Law § 1152(a), is evidence of negligence on his part, the record presents a triable issue of fact whether defendant Hill, operating a vehicle, contributed to the accident by failing to exercise due care to avoid a collision with plaintiff. Indeed, Hill testified that he saw plaintiff before the collision and had time to activate his horn and move his vehicle to the double line before reducing his speed by half (see Vehicle and Traffic Law § 1146; Ryan v Budget Rent a Car, 37 AD3d 698 [2d Dept 2007]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 26, 2015

CLERK