Herrmann v Giovanniello

Herrmann v Giovanniello 2017 NY Slip Op 08504 Decided on December 6, 2017 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, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
ROBERT J. MILLER, JJ.
2017-02553
(Index No. 602796/13)

[*1]Henry Herrmann, appellant,

v

Salvatore Giovanniello, et al., respondents.

O'Dwyer & Bernstien, LLP, New York, NY (Steven Aripotch of counsel), for appellant.

Di Pippo Law Group, LLC, Garden City, NY (Eric D. Mercurio of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered February 23, 2017, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff was struck by a motor vehicle driven by the defendant Salvatore Giovanniello as the plaintiff was crossing Merrick Road in Freeport outside of a crosswalk or intersection. Giovanniello testified, at his deposition, that the plaintiff was standing in a westbound traffic lane when Giovanniello first saw him, and that the plaintiff then stepped back, across the double-yellow line, into the eastbound traffic lane in which Giovanniello was traveling. Giovanniello applied the brakes with heavy pressure and swerved to the right slightly, but the front driver's side of his vehicle struck the plaintiff. The plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's conduct was the sole proximate cause of the accident (see Boereau v Scott, 140 AD3d 687, 688; see also Braxton v Jennings, 63 AD3d 772; DiCocco v Center for Dev. Disabilities, 264 AD2d 803). The plaintiff failed to raise a triable issue of fact in opposition. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court