Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered August 4, 2008, which denied defendants' motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.
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., Mazzarelli, Nardelli, Catterson, Moskowitz, JJ.
There is no question of fact as to how the accident occurred. The record supports the conclusion that plaintiff, 16 years old at the time of the accident, elected to enter the street between cars and, as a result, ran (or in plaintiff's hastily contrived revision, "walked") into defendant's car, without warning.
At her deposition, plaintiff gave two versions of the accident. She first testified that the accident occurred in front of her then-boyfriend's house, where she was playing at an open fire pump. When the accident happened, she was "running away from a guy" called Wacho, a 20-year-old friend, who was trying to get her wet. When he started chasing her, she was on the sidewalk and then she ran into the street. Before she ran into the street she saw a car waiting for the light to change towards her right.
Plaintiff testified that she did not see the car before it hit her. She was hit by the "front" of the car, coming from her right side, and it hit her left leg. The impact was light, but knocked her to the ground on her left side.
She also testified that the police asked her questions at the accident scene, and, specifically, she was asked how the accident happened. She said that she told the police, "I didn't remember." This initial inability to remember is particularly significant, because, after her testimony, her counsel requested a recess, and, when the parties went back on the record, stated that plaintiff wanted to "correct the previous statement she made." Plaintiff then testified that she had run across the street, and then walked back out into the street to get her sandal. She was actually walking at the time she was hit.
Defendant Yves Alba testified that when the accident occurred, she was driving two friends and her two children home from church in her minivan. One of her friends lived on Minerva Place, about two buildings down from the open fire hydrant, and defendant had been there before. The weather was sunny, nothing obstructed her vision, and she was not engaged in conversation, eating, drinking, smoking, or using a cell phone. Her maximum rate of speed was between 10 and 20 miles per hour.
She turned right onto Minerva Place from Jerome Avenue after waiting for a traffic light to change, and saw a fire hydrant spraying water, and five or more children playing in the street and on the sidewalk. She slowed her car down to about 10 miles an hour when she saw them.
The pedestrian came into contact with the driver's side door and mirror of her van. She did not apply the brakes or hear any warning sound before the impact. After the contact, she stopped, got out of the car, and asked the "young girl" who had been hit what was wrong. Plaintiff said "nothing," and then defendant asked her what happened. Plaintiff told defendant driver that "she was running away from the water pump" because somebody was going to spray her with water and she did not see defendant and "ran halfway into the street, and she ran into my car." Defendant called the police and waited until they came.
A nonparty witness, Rodolfo Vittini, who resides at Minerva Place, testified that, at the time of the accident, he was outside watching his son at play with the other children. He does not know either plaintiff or defendant. He testified that, before the accident occurred, plaintiff and 8 to 10 other children were running around and playing in the water at the fire hydrant. They were throwing water at each other and running up and down the street, and back and forth across the street. Vittini first said that he was sitting in front of his building and remained there the entire time, but later said that he had been sitting on a step of a building across the street from his house, and crossed back shortly before the accident because his son wanted to go home.
He saw defendant's car turning onto Minerva Place, and then it slowed down because a person was crossing the street. At the time of the accident, the car was "moving very slow." Plaintiff was being chased by a young boy who was trying to pour water on her, and "crossed in between two cars and then she crashed against the van" on the driver's side. When he first saw the van, he told the girl to be careful and yelled "watch out," but she continued. The girl crossed Minerva, and then tried to cross back, which is when the accident occurred. When he said "[w]atch out," the girl was "coming, running towards me, and she turned around, like ...