Barrette v. Vicente

Barrette v Vicente (2016 NY Slip Op 02022)

Barrette v Vicente

2016 NY Slip Op 02022

Decided on March 22, 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 March 22, 2016
Sweeny, J.P., Renwick, Moskowitz, Gische, JJ.

555 20344/12

[*1]Kemar Barrette, Plaintiff-Appellant,

v

Albert Vicente, Defendant-Respondent.

Belovin & Franzblau, LLP, Bronx (David A. Karlin of counsel), for appellant.

Law Office of Lord Chester So, Jericho (Thomas Torto of counsel), for respondent.

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered December 23, 2014, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The record demonstrates that defendant, while driving in the center lane of the Grand Concourse, first saw plaintiff a "millisecond" before impact, when he was approximately one car length away from plaintiff. Defendant, who was traveling below the 30 mile per hour speed limit, swerved his car to the right, moving into the outermost lane of travel, avoiding full-on impact with plaintiff. However, the rear tire of defendant's car ran over plaintiff's foot. The record further shows that plaintiff was dressed in dark clothing from head to foot, was attempting to cross the Grand Concourse at night while outside of a crosswalk, and stepped directly in front of defendant's vehicle. Under these circumstances, dismissal of the complaint was warranted (see Ramirez v Molina, 114 AD3d 540 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2016

CLERK