Garcia v El-Zien

Garcia v El-Zien 2011 NY Slip Op 08902 Decided on December 6, 2011 Appellate Division, Second 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 December 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, A.P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-06073
(Index No. 12635/10)

[*1]Maria E. Garcia, appellant,

v

Maria Agustin El-Zien, respondent.




Smiley & Smiley, LLP (John V. Decolator, Garden City, N.Y., of
counsel), for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock
of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Siegal, J.), dated May 11, 2011, which denied her motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries after she allegedly was struck by a vehicle operated by the defendant, which was turning right at an intersection. The plaintiff moved for summary judgment on the issue of liability, submitting, among other things, an affidavit which established that she was struck by the defendant's vehicle while she was crossing in a crosswalk with the light in her favor.

The evidence submitted by the plaintiff established, as a matter of law, that the defendant driver violated Vehicle and Traffic Law § 1112(a). However, the plaintiff failed to demonstrate that she was free from comparative fault, as her affidavit did not show that she looked for approaching traffic before she began to cross the street (see CPLR 3212[b]; Roman v A1 Limousine, Inc., 76 AD3d 552, 552; Yuen Lum v Wallace, 70 AD3d 1013, 1014; see also Thoma v Ronai, 82 NY2d 736, 737; Rosenblatt v Venizelos, 49 AD3d 519, 520). Since the plaintiff failed to submit evidence demonstrating that she was free from comparative fault, the Supreme Court properly denied the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).
MASTRO, A.P.J., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court