Sylvester v. Velez , 146 A.D.3d 599 ( 2017 )

Sylvester v Velez (2017 NY Slip Op 00390)

Sylvester v Velez

2017 NY Slip Op 00390

Decided on January 19, 2017

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 on January 19, 2017
Andrias, J.P., Saxe, Feinman, Gische, Kahn, JJ.

2781 157938/12

[*1]George Sylvester, Plaintiff-Appellant,

v

Emilio Velez, Defendant-Respondent.

Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 22, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff pedestrian testified that he was struck by defendant's vehicle while crossing the street within the crosswalk, but conceded that he did not have the right of way when he entered the street (see Santo-Perez v Enterprise Leasing Co., 126 AD3d 621 [1st Dept 2015]; Vehicle and Traffic Law § 1112; 34 RCNY 4-04[b][2]). Nevertheless, when viewing the evidence in the light most favorable to plaintiff, triable issues of fact exist as to the relative positions of plaintiff and defendant at the time of the accident, and whether defendant could have seen plaintiff before the accident and failed to exercise due care to avoid the accident (see Santo-Perez at 621; Moreira v Ramos, 95 AD3d 561 [1st Dept 2012]; Romeo v DeGennaro, 255 AD2d 208 [1st Dept 1998]; Vehicle and Traffic Law § 1146).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2017

CLERK