Barracato v SP Plus Corp.

Barracato v SP Plus Corp. 2019 NY Slip Op 00698 Decided on January 31, 2019 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 January 31, 2019
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
8303 306525/14

[*1]Stephen Barracato, Plaintiff-Respondent,

v

SP Plus Corporation, et al., Defendants-Appellants.

Barry McTiernan & Moore LLC, New York (David H. Schultz of counsel), for appellants.

Bader & Yakaitis LLP, New York (Michael Caliguiri of counsel), for respondent.

Order, Supreme Court, Bronx County (Donna Mills, J.), entered on or about February 26, 2018, which denied defendants' motion for summary judgment, unanimously affirmed, without costs.

Plaintiff was unloading merchandise from the drivers' side of his truck on the south side of 96th Street, a two way multi- lane street, when he was hit by the passenger side of defendants' shuttle bus as it drove by him. Defendants' motion for summary judgment was correctly denied because it did not present sufficient evidence to eliminate any material issues of fact concerning whether defendant driver failed to exercise due care to avoid striking plaintiff, whom he admitted seeing before the collision. While defendants presented evidence circumstantially supporting an inference that plaintiff stepped backwards into the bus, it likewise supports an inference that in the exercise of due care, the shuttle driver could have taken steps, such as honking to warn plaintiff of his approach (see Vehicle and Traffic Law § 1146; Santo-Perez v Enterprise Leasing Co., 126 AD3d 621[1st Dept 2015]; Moreira v Ramos, 95 AD3d 561 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2019

DEPUTY CLERK