SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
February 10, 2011
DALE R. GELSTER, PLAINTIFF-RESPONDENT,
MARIA L. JAOUDE, DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered June 11, 2010 in a personal injury action.
Gelster v Jaoude
Appellate Division, Fourth 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 February 10, 2011
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
The order denied the motion of defendant for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. Defendant met her initial burden by establishing that plaintiff, a pedestrian, unexpectedly darted into the path of her vehicle (see Jellal v Brown, 37 AD3d 179; Sheppeard v Murci, 306 AD2d 268; Ash v McNamara, 288 AD2d 956, lv denied 97 NY2d 612). In opposition to the motion, however, plaintiff raised a triable issue of fact whether defendant was speeding at the time of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to defendant's contention, the deposition testimony of a non-party witness regarding defendant's speed was not so inconsistent or speculative as to render it insufficient to defeat the motion (cf. Sheppeard, 306 AD2d 268; Wolf v We Transp., 274 AD2d 514). Entered: February 10, 2011 Patricia L. Morgan Clerk of the Court
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