Thoma v. Ronai

— Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 15, 1991, which denied plaintiffs motion for summary judgment, affirmed, without costs. Although defendant did not dispute plaintiffs averment that she was lawfully in the crosswalk when he struck her with his van as he turned left, summary judgment was prop [636] erly denied since a failure to yield the right of way does not ipso facto settle the question of whether the other party was herself guilty of negligence (see, Schmidt v Flickinger Co., 88 AD2d 1068, appeal withdrawn 58 NY2d 655; Pécora v Marique, 273 App Div 705). Nor was plaintiff necessarily entitled to summary judgment merely because defendant’s proof was placed before the court by way of an attorney’s affirmation referring to plaintiffs affidavit and defendant’s deposition testimony rather than by affidavit based on personal knowledge (see, Olan v Farrell Lines, 64 NY2d 1092; Tibak v City of New York, 154 AD2d 313, lv denied 75 NY2d 705). Justice Kupferman accurately relates defendant’s deposition testimony that plaintiff was walking uptown and that his van made contact with her right side, but he neglects to mention plaintiffs contrary averments in her verified complaint and her affidavit in support of her motion for summary judgment that she was crossing East 79th Street in a southerly direction and was struck on her left side. The police accident report also states that plaintiff sustained injuries to her left arm and leg. This is significant because, if the facts were as stated by the plaintiff, and she had looked to her left while crossing, she almost certainly would have seen defendant’s van turning left on East 79th Street from First Avenue and might have avoided the accident. Her comparative negligence may be found by a jury to be minimal, or even zero, but the record does not support our finding a total absence of comparative negligence as a matter of law (Schmidt v Flickinger Co., supra). " 'A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger (Barker v. Savage, 45 N. Y. 191). The law does not say how often he must look, or precisely how far, or when or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again * * * If he has used his eyes, and has miscalculated the danger, he may still be free from fault (Buhrens v. Dry Dock, E. B. & B. R. R. Co., 53 Hun, 571; 125 N. Y. 702). But it is a very different thing to say that he is not bound to look at all. We have repeatedly held that one who crosses a city street without any exercise of his faculty of sight, is negligent as a matter of law [citations omitted]. To escape the consequences of such negligence, he must prove that even if he had looked, the accident would still have happened.’ ” (Pecora v Marique, supra, at 707-708, quoting Knapp v Barrett, 216 NY 226, 230; see also, Counihan v Werbelovsky’s Sons, 5 AD2d 80, 83; 7 NY Jur 2d, Automobiles, [637] § 401; 6B Warren, New York Negligence, Pedestrian Struck by Motor Vehicle, § 18.02 [3d ed]; Annotation, Liability for Collision of Automobile With Pedestrian At Intersection as Affected by Reliance Upon or Disregard of Stop-and-Go Signal, 2 ALR3d 155, 195-200, § 8.) Plaintiff stated the following in her affidavit in support of her summary judgment motion: "I had waited on the Northeast corner of the intersection for the light to change, so I could proceed in a Southerly direction and cross East 79th Street to the Southwest corner of the intersection * * * When the light changed to green and the pedestrian sign said walk, I proceeded at a normal pace, South in the crosswalk. When I reached the center of East 79th Street, still in the crosswalk, I was struck on my left side. I did not see what struck me at the time, nor do I know how long I was unconscious after I was knocked to the pavement.” As demonstrated supra, the law is clear that plaintiff had a duty to use her eyes to protect herself from danger, and that her failure to look would constitute negligence. In the particular circumstances presented herein, plaintiff’s concession that she did not see the van that struck her is sufficient to raise a factual question as to whether she exercised reasonable care to protect herself from danger while crossing the intersection. Our conclusion that summary judgment was properly denied by the Supreme Court does not rest on “unsupported speculation,” as stated by Justice Milonas, but rather on the parties’ descriptions of the accident evaluated in the light of common experience. Concur—Sullivan, J. P., Carro and Ross, JJ. Milonas and Kupferman, JJ., dissent in separate memoranda as follows: