In Brown v. Mackiewicz (decided September 10, 2014), the Appellate Division, Second Department reversed the denial of plaintiff’s motion for summary judgment, and ordered that plaintiff’s motion for summary judgment on liability be granted.
Translation: plaintiff wins (at least on the issue of liability).
In this car accident personal injury case, the plaintiff was a pedestrian who was injured due to being struck, while in a crosswalk, by an ambulance.
In ruling that the plaintiff was entitled to summary judgment, the court held:
The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating, through her deposition testimony, that she entered the crosswalk at the subject intersection after exercising reasonable care by looking in both directions for approaching traffic, was walking within the crosswalk with the pedestrian crossing signal in her favor, and was at least half way across the street when she was struck by an ambulance operated by the defendant driver, Elizabeth Mackiewicz, who failed to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][i]; [c], .
In opposition, defendants failed to raise a triable issue of fact:
Contrary to the defendants’ contentions, Mackiewicz’s deposition testimony that the ambulance was stopped at a red light for 30 to 45 seconds prior to making the left turn into the intersection does not raise a triable issue of fact as to whether the plaintiff did not exercise due care by failing to see the ambulance before she entered the crosswalk, especially since Mackiewicz testified that, while the ambulance was stopped, her view of the intersection was obstructed by mounds of snow. Moreover, the defendants did not demonstrate that any failure on the part of the plaintiff to observe their vehicle stopped at a red light contributed to or caused the accident. The defendants also failed to demonstrate that the plaintiff was intoxicated, or that intoxication contributed to or caused this accident.
Thankfully, plaintiff didn’t have to rely on hearsay or conjecture – which some say are kinds of evidence – to prove her claims.