[*1]
Ramirez v Rosario
2014 NY Slip Op 51013(U) [44 Misc 3d 1204(A)]
Decided on June 27, 2014
Civil Court Of The City Of New York, Bronx County
Cannataro, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 27, 2014
Civil Court of the City of New York, Bronx County


Justin M. Ramirez, in infant over the age of fourteen by his mother and natural guardian, NATIRA M. RAMIREZ and NATIRA M. RAMIREZ, individually, Plaintiffs,

against

Edward S. Rosario and LORENZO ROSARIO, Defendants.




001020/2012



Goldin & Rivin, PLLC



Attorney for Plaintiffs



225 Broadway, Suite 1015



New York, NY 10007



Wilson, Bave, Conboy, Cozza & Couzens, P.C.



Attorneys for Defendants



2 William Street



White Plains, New York 10601



(914) 686-9010


Anthony Cannataro, J.

DECISION & ORDER



In this action arising from a pedestrian/motor vehicle accident, this Court is asked to address whether defendant is entitled to judgment as a matter of law upon the following undisputed facts:



On June 7, 2011, plaintiff Justin M. Ramirez, then age twelve, was struck by a vehicle operated by [*2]defendant Edward Rosario and owned by defendant Lorenzo Rosario. The accident occurred when plaintiff attempted to cross 183rd Street between Grand and Davidson Avenues through two parked cars in "the middle of the block". At deposition, plaintiff stated that when he entered the two-way street he was "speed walking" but slowed his pace as he began crossing the roadway. Plaintiff further admitted that, at the precise location where he was attempting to cross, there was no pedestrian crosswalk, no light to notify pedestrians that it was safe to cross, and that he did not attempt to warn or alert any drivers that he was crossing the roadway. When asked if he saw defendant's vehicle at the time he was traversing between the parked cars, plaintiff replied in the negative. Plaintiff further stated that, after he passed between the parked cars, he "glanced" left and saw "a little bit of red". When asked if he also looked to his right, plaintiff stated that he "didn't get to". Plaintiff alleged that, upon impact, his right arm was struck by the windshield on the passenger side of defendant's vehicle.



The driver, Edward S. Rosario, testified at deposition that his rate of speed was no more than 10 to 15 miles per hour while driving down 183rd Street. Defendant further stated that, at the time the accident occurred, he was slowing down for a vehicle in front of him when he heard something contact the passenger side of his windshield. Believing that an object had been thrown onto his windshield, it was not until defendant stopped and exited his vehicle that he saw plaintiff sitting near the passenger side of his car holding his right wrist. Six months after the accident, plaintiff Natira Ramirez commenced this negligence action on behalf of her son and herself.



On this motion for summary judgment, defendants argue they are not liable as a matter of law for the accident or plaintiff's injuries and seek an order dismissing the complaint. Plaintiffs oppose the motion arguing that defendant Edward Rosario's statement that he did not see plaintiff before the accident raises a question of fact as to whether defendant was paying sufficient attention to the road.



To obtain summary judgment, the movant must establish entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). On such a motion, the Court should draw all reasonable inferences in favor of the nonmoving party and summary judgment should only be granted where no genuine, triable issue of fact exists (Assaf v Ropog Cab Corp., 153 AD2d 520, 521 [1st Dept 1989]).



The undisputed facts of this case are similar enough to those of several appellate precedents to warrant granting summary judgment to defendants (see Fatumata B. v Pioneer Transportation Corp., 2014 NY Slip Op 04145, 2014 WL 2590170 [1st Dept, June 19, 2014]; Ramirez v Molina, 114 AD3d 540 [1st Dept, February 18, 2014]; Sakho v City of New York, 88 AD3d 581 [1st Dept 2011]; DeJesus v Alba, 63 AD3d 460 [1st Dept 2009] affm'd 14 NY3d 860 [2010]; Brown v Muniz, 61 AD3d 526 [2009]; Jellal v Brown, 37 AD3d 179 [1st Dept 2007]). In each case, the plaintiff walked, ran, or "darted" into the roadway between two parked vehicles and outside of a crosswalk. In each case, the Court held that the defendant-driver was entitled to summary judgment.



Appellate courts reviewing cases of this type have revealed a number of [*3]factors to be examined in determining whether summary judgment is appropriate. Such factors include: 1) the speed of defendant's vehicle at the time of the accident, 2) the manner in which plaintiff crossed the roadway; and relatedly 3) the opportunity (or lack thereof) that defendant had to avoid the accident.



As to the first factor, speeds between five and twenty miles per hour are sufficient to demonstrate that the defendant exercised due care (see e.g. DeJesus, 63 AD3d at 463 [maximum speed between 10 to 20 miles per hour]; Fatumata B., —AD3d at &mdash, 2014 WL 2590170, *1 [15 miles per hour]; Ramirez, 114 AD3d at 540 [12 miles per hour]; Sakho, 88AD3d at 581 [10 miles per hour]; Brown, 61 AD3d at 526-527 [5 miles per hour]). Indeed, in Fatumata, supra, the Appellate Division, First Department found that defendant's speed of 15 miles per hour was "low" despite the accident occurring in close proximity to two school buses. The Court of Appeals has affirmed dismissal under similar circumstances where a driver's speed was as high as 20 miles per hour (DeJesus vAlba, 14 NY3d 860 [2010]).



In the case at bar, the uncontroverted testimony of defendant is that his rate of speed at the time of the accident was no more than 15 miles per hour. While the speed of the driver is not dispositive of the issue, the relatively low speed of defendant's vehicle at the time of the accident strongly suggests that he acted prudently as a matter of law.



The second factor, the manner in which the plaintiff crosses the roadway, is entitled to considerable weight in analyzing whether defendant exercised due care. In Ramirez, the Court emphasized how plaintiff's actions in leaving the safety of the sidewalk and attempting to cross the roadway outside of the pedestrian walkway supported the finding that plaintiff "moved into the path of the vehicle" (Ramirez,114 AD3d at 540; see also DeJesus, 63 AD3d at 463 ["Had plaintiff, who was 16 years old, not entered the street, without warning, there would have been no accident. Such factual scenario warrants dismissal of the complaint"]).



Here, plaintiff admitted that he attempted to cross between two parked cars "in the middle of the block" where there was no pedestrian traffic signal to indicate that it was safe to cross. In traversing the roadway outside of the crosswalk, plaintiff's own testimony tends to support a finding that defendant had little to no warning before his vehicle came into contact with plaintiff (see Jemmal, 37 AD3d at 179). Even taking the testimony in the light most favorable to plaintiff, as the Court must, the fact that plaintiff did not run but "walked" into the roadway without warning approaching vehicles nevertheless supports a conclusion that defendants are not liable as a matter of law (see DeJesus, supra).



The final factor is defendant's opportunity to avoid the accident. The precedents discussed above stand for the proposition that a defendant is entitled to summary judgment even when the defendant driver saw the plaintiff two to three seconds [*4]before impact (see Ramirez, 114 AD3d at 540; see also Brown, 61 AD3d at 526- 529). The fact that the driver did not have time to see the plaintiff before impact, coupled with the plaintiff's admission that he or she also did not see the vehicle until the accident occurred, is sufficient to support a finding that plaintiff did not give defendant sufficient time to avoid the accident (see Fatumata B., 2014 WL 2590170 at *1).



In this case, defendant testified that he did not see plaintiff until after the impact occurred. Although plaintiff testified that he saw a "little thing of red", his statement that he "glanced" to the left and did not get a chance to look to the right strongly suggests that plaintiff was moving too fast to give defendant an opportunity to avoid the accident. Viewing the testimony of the parties in their entirety and taking all the relevant factors into account, this Court must conclude that defendants have met their prima facie burden of entitlement to summary judgment.



Having established defendants' prima facie entitlement to judgment as a matter of law, the burden now shifts to plaintiffs to raise a triable issue of fact sufficient to warrant a trial. Plaintiffs' argument that defendant's testimony somehow suggests inattention to the roadway at the time of the accident is purely speculative and, without more, is insufficient to defeat the instant motion (see Brown, at 527 ["Any contention by the injured plaintiff that the driver failed to observe what he should have observed is merely an attempt to ferret out speculative issues to get the case to the jury"]; see e.g. Casey v Abbas, 2013 NY Slip Op 31072 [Sup Ct, NY County 2013]). Therefore, this Court concludes that plaintiffs have failed to raise a triable issue of fact.



Accordingly, it is



Ordered that the motion for summary judgment dismissing the complaint is granted.



This constitutes the decision and order of this Court.



Dated: June 27, 2014E N T E R:

____________________________

Anthony Cannataro, JCC