The order of this court dated June 27, 2008 is recalled for reconsideration, the court not having considered the plaintiff's reply papers before issuing said order, and upon reconsideration the following decision is substituted in its place.

By order dated June 27, 2008, this court denied the motion of plaintiffs Adina Benedikt and Ervin Benedikt for an order, pursuant to CPLR 3212, granting summary judgment in their favor with respect to the issue of liability.

Background

This is a negligence action in which plaintiffs seek money damages for injuries sustained by Adina Benedikt in a motor vehicle accident that occurred on July 11, 2007. At the time of the accident, the plaintiff, a pedestrian, was attempting to cross 49th Street at the intersection of 12th Avenue in Brooklyn when she was struck by a lumber truck owned by defendant Certified Lumber Corporation (Certified) and driven by defendant Israel Neiman ^[FN1] (Neiman).

The Parties' Contentions

Plaintiffs contend that, when the pedestrian walk signal changed in Adina Benedikt's favor, she attempted to cross 49th Street and was struck while in the crosswalk. In support of their [*2]contentions, plaintiffs submit an affidavit from Adina Benedikt to the effect that the subject truck struck plaintiff while she was lawfully in the crosswalk. In addition, plaintiffs cite a police report and a supplemental police report wherein plaintiffs allege that Neiman made an admission that he did strike Adina Benedikt while she was in the crosswalk. Plaintiffs also cite an MV-104 accident report, allegedly prepared by Neiman, as additional evidence that the accident occurred as Adina Benedikt was in the crosswalk.

In opposition to the motion, defendants allege that, just prior to the accident, Neiman was stopped in his truck at a red light on 12th Avenue in anticipation of making a right turn onto 49th Street. Defendants further allege that, once the light changed in his favor, Neiman determined that his path was clear and proceeded to make his turn. Only upon hearing a passerby yelling did he stop his truck; whereupon, he noticed he had struck Adina Benedikt with the left front wheel of the truck. In his affidavit, Neiman asserts that Adina Benedikt was not in the crosswalk at the time she was struck, but was at least five feet further up 49th Street and outside of the crosswalk. Defendants add that the plaintiffs are not entitled to summary judgment as they rely on unsworn accident reports and Adina Benedikt's own self-serving affidavit. Defendants contend that a triable issue of fact exists regarding where Adina Benedikt was struck by the truck and that plaintiff's motion for summary judgment is premature as discovery is ongoing and examinations before trial of the parties have yet to take place.

In reply to defendants' contentions, and in further support of their motion, plaintiffs allege that, under recent case law decided by the Appellate Division, Second Department, Neiman's affidavit must be precluded and given no consideration because it contradicts his alleged admissions contained in the police reports. Moreover, plaintiffs contend that Neiman's admissions, and not the reports themselves, are admissible under the applicable exception to the hearsay rules of evidence.

Discussion

The proponent of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). To establish prima facie entitlement to summary judgment in accidents where a pedestrian is struck by a motor vehicle while inside a crosswalk, the plaintiff must present proof that "[s]he was walking within a crosswalk and that [s]he had looked for approaching traffic before [s]he began to cross (citations omitted)" (Rosenblatt v Venizelos, 49 AD3d 519, 520 [2008]). Once such a showing is made, the burden shifts and the party opposing the motion must tender evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial or tender an acceptable excuse for his or her failure to do so (see Greenberg v Coronet Prop. Co., 167 AD2d 291 [1990]; see Zuckerman, 49 NY2d at 557 ). If the existence of an issue of fact is even arguable, summary judgment must be denied (see Museums at Stony Brook v Vil. of Patchogue Fire Dept., 146 AD2d 572 [1989]). Further, the party opposing a motion for summary judgment is entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions of the parties (see Nicklas v Tedlen Realty Corp., 305 AD2d 385 [2003]; see also Akseizer v Kramer, 265 AD2d 356 [1999]; Henderson v City of New [*3]York, 178 AD2d 129, 130 [1991]; McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1990]; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74 [1987]; Strychalski v Mekus, 54 AD2d 1068, 1069 [1976]).

Based upon the record before the court, the plaintiffs have met their prima facie burden of entitlement to summary judgment. Adina Benedikt's affidavit alleges that she was walking within the crosswalk, approximately half-way across the street with the crosswalk signal in her favor, when she was struck by the truck. Neiman's affidavit confirms that Benedikt had a clear signal to cross the street as he attests that the light changed in his own favor before he began to move his vehicle. Additionally, the plaintiff submitted the police accident reports, containing Neiman's admission immediately following the accident that his vehicle had struck the plaintiff within the crosswalk (see Rosenblatt, 49 AD3d at 520; see also Abramov v Miral Corp., 24 AD3d 397 [2006]).

The accident description from the Police Accident Report reads as follows:

At [time and place of occurrence] driver [vehicle] 1 states making right on 12th turning onto 49th street when driver did strike [pedestrian] in walkway. Driver states he did not see [pedestrian] in crosswalk. [Pedestrian] states had crosswalk signal & was struck by [vehicle] 1. [Sergeant] on scene."

The explanation from the Truck and Bus Supplemental Police Accident Report reads as follows:

"Driver states making right turn when driver did strike [pedestrian] in crosswalk. Driver states did not see [pedestrian]."

Having made a prima facie showing, the burden then shifted to defendants to offer evidence, in admissible form, sufficient to establish the existence of material issues of fact which would require a trial. Neiman's affidavit, which the defendants submit in opposition to the motion, fails to raise a triable issue of fact (see Rosenblatt, 49 AD3d at 520). Neiman's allegation that the plaintiff was not within the crosswalk, but further up the street, is "a belated attempt by [Neiman] to avoid the consequences of his earlier admission by raising a feigned issue which [is] insufficient to defeat the motion (see Abramov v Miral Corp., 24 AD3d at 398), particularly since he did not deny the accuracy of the police accident report (cf. Imamkhodjaev v Kartvelishvili, 44 AD3d 619, 620 [2007])." (see Rosenblatt, 49 AD3d at 520).

Further, the defendants' contention that summary judgment is premature as discovery is ongoing and examinations before trial of the parties have yet to take place does not warrant denial of the plaintiffs' motion as they already have personal knowledge of the relevant facts (see Rosenblatt, 49 AD3d at 520).

Accordingly, plaintiff's motion for partial summary judgment on the issue of liability is granted.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.