Lee v Gallett

[*1] Lee v Gallett 2008 NY Slip Op 51272(U) [20 Misc 3d 128(A)] Decided on April 3, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2007-773 Q C.

Whooim Lee and Ki Bok Lee, Appellants,

against

Mary G. Gallett, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered April 3, 2007. The order denied plaintiffs' motion for summary judgment.

Order affirmed without costs.

In this action for damages arising out of an automobile accident, plaintiffs moved for summary judgment. The court denied the motion, and the instant appeal by plaintiffs ensued.

As noted by the lower court, a party may be negligent in failing to see what should have been seen through the proper use of his or her senses (see Gabler v Marly
Bldg. Supply Corp., 27 AD3d 519 [2006]; Spatola v Gelco Corp., 5 AD3d 469 [2004]). In the instant case, a review of the record on appeal indicates that issues of fact exist with regard to the respective negligence of the parties. Accordingly, plaintiffs' motion for summary judgment was properly denied.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 3, 2008