Carmen O. Ex Rel. Gloria O. v. James ( 2016 )

Carmen O. v James (2016 NY Slip Op 03442)

Carmen O. v James

2016 NY Slip Op 03442

Decided on May 3, 2016

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 May 3, 2016
Mazzarelli, J.P., Friedman, Andrias, Moskowitz, Kahn, JJ.

1043 350323/12

[*1]Carmen O., an Infant, by Her Mother and Natural Guardian, Gloria O., et al., Plaintiffs-Respondents,

v

Stephen James, et al., Defendants-Appellants.

Lynch Rowin LLP, New York (Marc Rowin of counsel), for Stephen James and Sears Roebuck and Co., appellants.

Russo & Toner, LLP, New York (Alexandra L. Alvarez of counsel), for Marion Cabrera and Marion Rivera, appellants.

Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 22, 2015, which denied defendants' motions for summary judgment dismissing plaintiffs' complaint, unanimously affirmed, without costs.

Issues of fact exist as to whether defendant drivers used reasonable care to avoid hitting the infant plaintiff (plaintiff), then 15 years old, who was crossing a roadway outside the crosswalk and had stopped in the middle of the road before being hit by defendants (see Vehicle and Traffic Law §§ 1146[a], 1180[a]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Romeo v DeGennaro, 255 AD2d 208, 208 [1st Dept 1998]). While plaintiff may bear some responsibility, defendants have not established, as a matter of law, that plaintiff was the sole proximate cause of her injuries, and thus there is an issue of comparative negligence for the jury (Charleston v City of New York, 100 AD3d 471, 472 [1st Dept 2012]).

We have considered the appealing parties' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2016

CLERK