In Blok v. Mammadov (App. Div. 2nd Dept. March 18, 2015), the Appellate Division, Second Department, affirmed the denial of summary judgment to a pedestrian plaintiff.
Here are the facts of this car accident case:
While crossing Sheepshead Bay Road at or near its intersection with Emmons Avenue in Brooklyn, the plaintiff allegedly was injured when he was struck by a vehicle owned and operated by the defendant as it was making a right turn from Emmons Avenue onto Sheepshead Bay Road.
Here is the applicable law:
In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that a defendant was negligent, but also that he or she was free from comparative fault. In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party. Moreover, the issue of comparative fault is generally a question for the jury to decide.
Applying the law to the facts, the court explained why plaintiff was not entitled to summary judgment on liability.
Although “plaintiff established his entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk, he looked in both directions of the roadway to make certain that no vehicles were approaching, that the pedestrian control device was in his favor, and that the defendant, in making a right turn, failed to yield the right-of-way …, the defendant raised triable issues of fact as to how the accident occurred and whether the plaintiff was comparatively at fault.”