Stallings v. Copeland

Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered June 13, 2005 in a personal injury action. The order denied defendant’s motion for summary judgment dismissing the amended complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action on behalf of her daughter seeking damages for injuries sustained by her daughter when she was struck by a vehicle owned and operated by defendant. Defendant moved for summary judgment dismissing the amended complaint on the ground that plaintiffs daughter suddenly and unexpectedly ran in front of his vehicle, rendering the collision unavoidable. Supreme Court properly 1216 denied the motion on the ground that defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). According to the deposition testimony of defendant submitted in support of the motion, defendant did not keep his eyes on the road at all times while approaching plaintiffs daughter but, instead, looked away from the road, to his left, and observed plaintiff just before the collision. Defendant further testified that he observed plaintiffs daughter prior to the collision and failed to warn her that he was approaching. We thus conclude that defendant failed to establish as a matter of law that he exercised the requisite due care to avoid the collision with plaintiffs daughter (see Levy v Town Bus Corp., 293 AD2d 452 [2002]; Charles v Ball, 291 AD2d 367 [2002]; Ruocco v Mulhall, 281 AD2d 406 [2001]). Because defendant failed to meet his initial burden on the motion, we do not address the sufficiency of plaintiffs opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Pigott, Jr., P.J., Scudder, Kehoe, Green and Hayes, JJ.