Friday, October 2, 2015

Summary judgment on liability in a personal injury action.

Practice point:  The Appellate Division reversed the motion court and granted plaintiff's motion in this action for damages for personal injuries sustained when plaintiff was struck by an ambulette.  The Appellate Division found that plaintiff established that she waited for the pedestrian signal to be in her favor prior to entering the crosswalk, and that she exercised due care by looking in both directions  and for any vehicles turning left before she entered the crosswalk. While crossing at a steady normal pace, and having almost completed crossing in the crosswalk, plaintiff was struck by the vehicle operated by the defendant driver, which came from behind plaintiff and failed to yield the right-of-way.  In opposition, defendants failed to raise a triable issue of fact.

Student note:  The Appellate Division also found that, contrary to defendants' contentions, the motion was not premature.  Defendants failed to demonstrate that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of plaintiff.  The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered by further discovery is an insufficient basis for denying the motion.

Case:  Chou v. Ocean Ambulette Serv., Inc., NY Slip Op 06876 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Statute of limitations in a breach of fiduciary action.