Powell v. Hanigsberg

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 26, 2003, which, in an action for personal injuries caused by contact between plaintiff and defendant’s car, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The parties’ conflicting versions of the accident raise triable issues of fact, including whether, as plaintiff asserts, traffic cones had been placed in the street around the area where he was working on a construction site, and, if so, whether the point of contact was inside the cones; whether plaintiff was struck by the front of defendant’s car or stepped back into the side of the car; and, assuming plaintiff stepped back into the side of defendant’s car, whether defendant should have distanced himself from the work area, or was otherwise negligent under the circumstances (see Ugarriza v Schmieder, 46 NY2d 471, 474, 475-476 [1979]). Concur—Buckley, P.J., Nardelli, Andrias, Sullivan and Gonzalez, JJ.