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Kelly v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 10, 2009

MARY ELIZABETH KELLY ALSO KNOWN AS MARY BETH KELLY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF CARL HENRY NACHT, DECEASED, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 28, 2008, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings.

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.

Tom, J.P., Saxe, McGuire, Moskowitz, Freedman, JJ.

111047/06

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that, despite defendant tow-truck driver's unobstructed view, he failed to obey the yield sign and failed to observe either plaintiff or her decedent prior to making a right turn across the bike path and striking the decedent (see Vehicle and Traffic Law § 1142[b]; § 1172[b]; Kirchgaessner v Hernandez, 40 AD3d 437 [2007]). In opposition, defendants' speculation as to the decedent's alleged comparative negligence was insufficient to raise a triable issue of fact. The record establishes that the decedent's failure to have his bicycle equipped with either a light on the front of the bicycle or a bell (see Vehicle and Traffic Law § 1236[a], [b]), was not a proximate cause of the accident, especially given the uncontradicted testimony that plaintiff, who was riding side-by-side with decedent and was close to the oncoming traffic, did have a working lamp attached to her bicycle (see e.g. Cranston v Oxford Resources Corp., 173 AD2d 757, 758-759 [1991], lv denied 78 NY2d 860 [1991]). Nor was the decedent's reaction in veering to get out of the way of the path of the truck an unreasonable reaction to the emergency circumstances confronting him (see Garcia v Verizon N.Y., Inc., 10 AD3d 339 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090210

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