Quintavalle v Perez
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Quintavalle v Perez 2015 NY Slip Op 32550(U) July 30, 2015 Supreme Court, Bronx County Docket Number: 303665/2014 Judge: Jr., Kenneth L. Thompson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Aug 10 2015 Bronx County Clerk 0 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX IA 20 X PATRICK QUINTAVALLE, Index No: 303665/2014 Plaintiff, -against- DECISION AND ORDER NESTOR PEREZ, III and GOLDEN TOUCH TRANSPORTATION OF NY, INC., Defendants. x Present: HON. KENNETH L. THOMPSON, JR. The following papers numbered 1 to 3 read on this motion for summary judgment No On Calendar of June 26, 2015 PAPERS NUMBER Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed-----------------__1_ Answering Affidavit and Exhibits-------- -------------------------------------------------------- 2 _ Replying Affidavit and Exhibits-----------------------------------------------------------------__3 _ Affidavit---------------------------------------------------------------------------------------Pleadings -- Exhibit------------------------------------------------------------------------------------Memorandum of Law--------------------------------------------------------------------------------- _ __ Stipulation -- Referee's Report --Minutes------------------------------------------------------------Filed papers------------------------------------------------------------------------------------------Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows: Plaintiff moves pursuant to CPLR 3212 for summary judgment on the issue of liability against defendants. This action arose as a result of personal injuries sustained by plaintiff in a collision between a coach bus operated by defendant, Nestor Perez, III, (Perez} and plaintiffs person. It is undisputed that plaintiff was in a crosswalk at the time of the collision. Plaintiff argues that Perez is 100% negligent in causing the collision on grounds that Perez failed to yield to plaintiff when plaintiff was properly within the crosswalk with a green hand symbol indicating that plaintiff had the right of way. VTL 1160(c).and 34 RCNY 4-03. However, "[p]laintiffs concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care." (Thoma v Ronai, 82 N.Y.2d 736, 737 [1993]). Plaintiff attempts to distinguish Thoma by reasoning that since plaintiff was crossing Third Ave. by walking in the crosswalk on east 41 st street in an easterly direction and Perez turned his coach bus left from an easterly direction on east 41 st street, plaintiff could not see the bus as the bus [* 2] FILED Aug 10 2015 Bronx County Clerk .i was behind plaintiff out of his field ofvison. However. Perez testified at his EBT that plaintiff hit the driver's side door of the coach bus. A jury could determine that plaintiff had an opportunity to have avoided colliding with the bus as it was a least momentarily in front of plaintiff. On a summary judgment motion the "court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility." (Dauman Displays Inc. v. Masturzo, 168 AD2d 204 [1st Dept. 1990]). "It is settled that the function of a court on a motion for summary judgment is issue finding, not issue determination." (Cleanvater v. Hernandez, 256 AD2d 100 [1st Dept. 1998]). Accordingly, plaintiffs motion is denied. The foregoing shall constitute the decision and order of the Court. Dated:- JUL 3 0 20 \5 KENNETHL. 2 I I
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