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CPLR § 3212

This personal injury action arises from a car accident which occurred in a morning. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike.

A New York Injury Lawyer said that plaintiff claims that she looked before crossing and did not see any vehicles on the road making a turn onto Hempstead Turnpike. Plaintiff further claims that, as she was crossing, she was struck in the rear, specifically her lower back, by the front of defendant’s vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced this action by the filing and service of a Summons and Verified Complaint. In her motion for partial summary judgment, plaintiff argues that defendant was negligent per se in violating New York State Vehicle and Traffic Law by failing to keep a proper lookout, failing to see what was there to be seen and failing to use due care to avoid hitting a pedestrian. Plaintiff submits that a pedestrian must be granted summary judgment if the plaintiff demonstrates that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendant’s car failed to yield the right of way and struck her, and that the plaintiff exercised due care by looking to check for approaching vehicles before entering the intersection. In support of her motion, plaintiff offers the Affidavit of a witness who saw the incident.

In opposition to plaintiff’s motion, defendant argues that plaintiff pedestrian stated that she never saw the defendant’s vehicle prior to the accident. Defendant testified that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendant’s vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.” Defendant testified at her Examination Before Trial (“EBT”) that she observed plaintiff and a male pedestrian cross the street in front of her and, after plaintiff had crossed in front of her, the wind caught plaintiff’s umbrella, turned it inside out, causing plaintiff to walk backwards into defendant’s vehicle. See Plaintiff’s Affirmation in Support Exhibit D. Defendant further argues that the Affidavit of witness Shawn Johnson states that he was next to plaintiff at the time of the accident.

Defendant stated at her EBT that the witness was behind the plaintiff. Defendant submits that plaintiff testified at her EBT that the witness was walking in front of her. Consequently, defendant claims that there is an issue of fact as to whether the witness actually saw the accident because, if he was in front of plaintiff, he would not have observed the accident take place.

Defendant contends that plaintiff and defendant set forth two different versions as to how the accident occurred and that summary judgment is routinely denied in cases where the parties give conflicting testimony. Defendant adds that plaintiff testified that she did not see defendant’s vehicle prior to the accident and that plaintiff’s failure to observe defendant’s vehicle prior to the accident raised an issue of fact as to plaintiff’s comparative negligence. In reply to defendant’s opposition, plaintiff submits that defendant’s opposition argues that there is an issue of fact with respect to whether the wind, turning plaintiff’s umbrella inside out, caused plaintiff to walk backwards into the defendant’s vehicle. The plaintiff, however, testified that the umbrella was a small, one-person umbrella, and that it did not blow inside out at the time of the accident. Therefore, the umbrella was not the cause of the accident. The witness stated that he witnessed the defendant’s vehicle make a sharp left turn and hit the plaintiff as she was walking in the crosswalk. The witness made no mention of an umbrella as a contributing factor to the accident. Except for the defendant’s self-serving statement that plaintiff’s umbrella opened, there is no other testimony or evidence to support that assertion. Clearly, this accident was caused by the defendant’s failure to use reasonable care to avoid hitting the plaintiff.

To Be Cont,,,

We should always take care of ourselves when we go out, as there are lots of troubles which may occur. Here in Stephen Bilkis and Associates, our New York Personal Injury Lawyers helps the victims of these accidents. We also have our New York Medical Malpractice Attorneys to help those who were abused by medical practitioners.

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