Gardiner v. City of New York

Gardiner v City of New York (2023 NY Slip Op 01138) Gardiner v City of New York 2023 NY Slip Op 01138 Decided on March 02, 2023 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 02, 2023 Before: Renwick, J.P., Friedman, Gesmer, Singh, Higgitt, JJ. Index No. 22995/14 Appeal No. 17436 Case No. 2022-01144 [*1]Misha Gardiner, Plaintiff-Appellant, v City of New York, Defendant, Mr. Transportation, Inc. Doing Business as Marquis Ambulette, et al., Defendants-Respondents. City of New York, Third-Party Plaintiff, v Mr. Transportation, Inc., et al., Third-Party Defendant-Respondents. Gersowitz Libo & Korek, P.C., New York (Anthony Makarov of counsel), for appellant. Lewis Brisbois Bisgaard & Smith LLP, New York (Dean L. Pillarella of counsel), for respondents. Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered February 15, 2022, which, in this action for personal injuries arising out of a motor vehicle accident, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs. The court properly denied plaintiff's motion because the record presents triable issues of fact as to whether, inter alia, plaintiff should have seen defendants' vehicle as she was approaching the intersection (see Luciano-Mahoney v Rossman, 191 AD3d 604, 605 [1st Dept 2021]; Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 298 [1st Dept 2008]). We have considered the remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 2, 2023