The following papers numbered 1 to 16 were read on this motion by the defendant, ROWENA D. THOMPSON, for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability and dismissing the plaintiffs' complaint:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits................1 - 6Affirmation in Opposition-Affidavits-Exhibits.......7 - 11

Reply Affirmation-Exhibits.........................12 - 16

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This is an action in which the plaintiffs seek damages for conscious pain and suffering and wrongful death allegedly sustained by the infant plaintiff, SHAMIRA SHAMSU ZAMAN, as the result of a motor vehicle/pedestrian accident which occurred on September 13, 2010 at approximately 2:00 - 2:30 p.m. on 211th Street at or near the intersection with 89th Road in Queens County, New York. At the time of the accident, the decedent, Shamira, was two years and one month of age. The defendant [*2]alleges that she was operating her vehicle in a reasonable, proper and lawful manner at a speed of approximately 15 to 20 miles per hour when the plaintiff emerged from between or in front of parked vehicles and struck the side of the defendant's vehicle. Defendant moves for an order dismissing the complaint against her on the ground that the infant's death was the result of an unforeseeable accident and there is no evidence establishing any liability on the part of the defendant.

Plaintiff commenced this action by filing a summons and verified complaint on July 8, 2011. Issue was joined by service of defendant's verified answer dated September 19, 2011. The plaintiff filed a note of issue on December 20, 2012.

The defendant now moves, following an examination before trial of the defendant for an order pursuant to CPLR 3212(b), granting summary judgment in her favor and dismissing the plaintiffs' complaint. In support of the motion, the plaintiff submits an affirmation from counsel, Peter D. Garone, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the police accident report; and a copy of the transcript of the examination before trial of the defendant, Rowena D. Thompson.

In her examination before trial, taken on May 14, 2012, the defendant, age 58, testified that she is employed as a nursing assistant at New York Hospital of Queens. On the date of the accident, September 13, 2010, at about 2:20 p.m. she was operating her 2002 Toyota Rav 4 coming from work at New York Hospital in Flushing and heading towards her home in Elmont. She stated that in the area where the accident occurred, 211th Street is a one-way street running in a southbound direction with one lane of travel and parking lanes on both sides of the street. She was proceeding at a rate of speed of 15-20 miles per hour. She stated that as she was driving in the middle of 211th Street she heard a thud on the right passenger side of her vehicle. She stated that she had seen a group of two or three adults standing on the left sidewalk in front of a house and several parked cars on both sides of the street. Thirty seconds after she saw the group of people she heard the thud. She immediately stopped and exited the vehicle and walked towards the back. She did not see anything by the car and as she was walking back to the driver's side she saw a group of people running towards a lawn across the street. She saw a woman screaming and picking something up from the lawn on the right side of the street. She saw that it was a child and ran back to her vehicle to call 911 from her cell phone. She told the operator that she had just had an accident and a child was hurt. An ambulance and several police cars [*3]arrived at the scene in less than five minutes. She testified that she told the police: "I was coming down 211th and then I heard a thud. I stopped and got out of my car and walked back and I did not see anything, so I got...as I was entering my car, I saw the people run across the street and I ran. I ran back to them asking them — when I ran back to them, I saw when the lady picked up something and I said to her, what did you pick up? Show me what you picked up.' And as I realized she cradled, I ran back from the lawn to get to my car and my legs went out behind me — under me, and someone said to me, "don't get a heart attack over his. You could not prevent it." Defendant testified that she never saw the little girl as she was traveling down the block. She also testified that she did not remember telling the police that the child ran out in front of her vehicle from between parked cars. When she got home she saw a small dent on the right passenger side fender on the side of the vehicle near the front tire. She was given a field sobriety test at the scene and no alcohol was detected. She was not given a traffic violation as a result of the accident. She learned while still at the scene that the child had died.

The description of the accident prepared by the police officer called to the scene states: "at t/p/o operator Veh #1 (defendant) states pedestrian ran into road from between parked cars, at which time veh #1 collided with pedestrian.

In his affirmation in support of the motion, defendant's counsel, Mr. Garone, contends that based upon the defendant's deposition testimony, it is clear that the two year old infant plaintiff emerged into the roadway in the vicinity of parked vehicles and struck the right front fender near the front wheel of the defendant's vehicle. Counsel asserts that there is no testimony in the record that the defendant was negligent in the operation of her vehicle and that it can be reasonably concluded from her testimony that the infant plaintiff emerged from between or in front of parked vehicles into the side of her car. Counsel states that the courts have repeatedly held that a defendant is entitled to summary judgment when the defendant is operating his or her vehicle in a lawful manner and an infant or adult pedestrian emerges into traffic from between parked vehicles. Counsel concludes that the diminutive size of the two year old plaintiff would have prevented the defendant from observing her before she emerged from behind a vehicle and ran into the side of the defendant's vehicle (citing Sae Hyun Kim v Mirisis, 286 AD2d 761 [2d Dept. 2001]; Wolf v We Transp., Inc., 274 AD2d 514 [2d Dept. 200]).

Therefore, defendant submits she has demonstrated, prima [*4]facie, that she is entitled to summary judgment dismissing the plaintiffs' complaint based upon the testimony that indicates that the child emerged from between parked cars into her moving vehicle leaving her with no time or opportunity to avoid the occurrence.

In opposition, plaintiff's attorney, Eric Fishman, Esq., contends that motion should be denied as the testimony of the defendant indicates that material questions of fact and credibility exist as to whether defendant failed to properly observe the infant in the middle of the roadway, whether she was negligent in that she stated she was looking to her left at persons on the sidewalk prior to the impact, and moreover the statement attributed to her on the police report that the child emerged from between parked cats is in conflict with her testimony at the deposition that she does not recall making such statement to the police officers at the scene. Plaintiff argues that this case is not similar to the "dart out" cases cited by the plaintiff because there is no testimony in the record that the child darted out. Defendant stated she did not see the child until after she heard the thud and thus there was no testimony as to where the child came from. Plaintiff argues that the facts of the instant case are distinguishable from Kim, supra because in that case two non-party witnesses testified that they actually observed the infant plaintiff run into the street from between two parked cars.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

Here, this court finds that the defendant's pre-trial deposition testimony alone is insufficent to demonstrate, prima facie, that the infant plaintiff darted out into the road from between parked cars as surmised by the defendant. The testimony of the defendant alone is insufficient because there is no eyewitness testimony from anyone including the defendant which would show, prima facie, that acts of the infant were the proximate cause of the accident and that the defendant was free from comparative negligence. The only facts elicited at the defendant's examination before trial as to causation was that she heard a thud on the right side of her vehicle at which point she immediately stopped and learned that she had struck a child. Further, the defendant testified that the child did not run into [*5]the road in front of her vehicle. She also testified that she did not recall telling the police at the scene that the child ran out or emerged into the road from between parked cars as reflected in the police report. She actually testified that she did not know if the child ran out because she never saw the child before the accident. Therefore, from the testimony proffered by the defendant it would be pure speculation to state that the child darted out into the road. Because the defendant testified she did not see the child prior to hearing the thud, her testimony raises material issues of fact as to where the child was prior to the accident and how long the child was actually in the road prior to the accident and whether the defendant should have seen the infant and/or had a chance to avoid striking her.

This case is clearly distinguishable from the darting out cases cited by the defendant because here there is no eyewitness testimony and no testimony from the defendant establishing where the child was prior to the accident and how long and from where the child came to be on the road (see e.g. Brown v Muniz, 61 AD3d 526 [1st Dept. 2009][summary judgment granted to defendant where the deposition testimony of both plaintiff and the driver establish that plaintiff, without warning and without looking in the direction of oncoming traffic, darted out between two parked vehicles directly into the path of defendants' vehicle, leaving the driver unable to avoid plaintiff]; Williams v PJ Transp., Inc., 40 AD3d 1081 [2d Dept. 2007][summary judgment granted where there was uncontroverted evidence that after the infant plaintiff encountered a schoolmate behind a parked car the schoolmate pushed him into the path of the taxicab owned by the defendant PJ Transport, Inc]; Sae Hyun Kim v Mirisis, 286 AD2d 761 [2d Dept.2001][the defendants established their prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of two nonparty eyewitnesses, who testified that the infant plaintiff ran into the street from between parked cars]; Wolf v We Transp., Inc., 274 AD2d 514 [2d Dept. 2000] [summary judgment granted to defendant based upon uncontroverted evidence that the infant plaintiff darted out from between parked cars]).

Thus as there is no testimony in the record that there was an emergency situation and, as stated above, there was insufficient evidence presented that the child darted out into the road, this Court finds that defendant's conclusion that the infant plaintiff emerged from between parked cars is supposition.

Accordingly, based on the foregoing, it is hereby

ORDERED, that the defendant's motion for summary judgment [*6]dismissing the plaintiff's complaint motion is denied.

Dated: November 14, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.