Summary
This Appellate Division, First Department decision reviews a Supreme Court order denying defendants' motion for summary judgment in a negligence action arising from a pedestrian-vehicle collision. The court modified the order to grant partial summary judgment on the issue of plaintiff's comparative fault, as she crossed outside a crosswalk without yielding right of way. However, triable issues of fact regarding the defendants' negligence were properly preserved for trial based on conflicting expert testimony and deposition evidence. The remaining contentions were found unavailing.
Topics
Practice areas
Questions Presented
- Whether the trial court erred in denying defendants' motion for summary judgment on negligence
- Whether the trial court erred in granting partial summary judgment on plaintiff's comparative fault
Holdings
- The appellate division affirmed the trial court's denial of summary judgment because triable issues of fact existed as to the defendants' negligence.
- The appellate division affirmed the partial summary judgment on plaintiff's comparative fault, finding the uncontroverted facts showed the plaintiff failed to yield the right of way.
Factual background
Plaintiff Beverly Ann Fortson was walking on the roadway outside a crosswalk and was struck by a garbage truck owned by Action Carting Environmental Services, Inc. and driven by Junior A. Thompson after the traffic light turned green for the truck. The plaintiff failed to yield the right of way, while the driver allegedly failed to check his mirrors before entering the intersection.
Procedural history
The Supreme Court, Bronx County denied defendants' motion for summary judgment, granted partial summary judgment on comparative fault, and affirmed otherwise. The parties appealed that order to the Appellate Division, First Department.
Remand instructions
The extent of the parties' comparative negligence will be determined at trial.