SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
June 9, 2009
JARIUS BRAXTON, ETC., RESPONDENT,
BARBARA JENNINGS, APPELLANT.
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.
ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.
(Index No. 26499/05)
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated May 27, 2008, which denied her motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
Regardless of whether we accept the plaintiff's or the defendant's version of the subject accident, the defendant established, prima facie, that she did not contribute to the accident and that the sole proximate cause of the accident was the conduct of the infant plaintiff, who suddenly stepped into the road when it was not safe for him to do so (see 34 RCNY 4-04[b]; cf. Ryan v Budget Rent a Car, 37 AD3d 698; Deitz v Huibregtse, 25 AD3d 645; Ruocco v Mulhall, 281 AD2d 406). In opposition, the plaintiff failed to raise a triable issue of fact.
SPOLZINO, J.P., ANGIOLILLO, LEVENTHAL and LOTT, JJ., concur.
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