Lesly M. Villar Payano v. Abdulla Al Nahshal et al.
Attorneys and Parties
Brief Summary
Personal injury—motor vehicle versus pedestrian; summary judgment on liability in a crosswalk/right-of-way dispute.
The Supreme Court, Bronx County granted plaintiff’s motion for summary judgment on liability.
The grant of summary judgment to plaintiff on liability.
Plaintiff failed to make a prima facie showing. The court improperly relied on an unauthenticated police report from a non-eyewitness, and even if considered, the report did not establish that decedent was in the crosswalk or had a green walking signal. Triable issues remain as to whether the driver exercised due care under Vehicle and Traffic Law (VTL) § 1146(a) [requiring drivers to exercise due care to avoid colliding with pedestrians] or had a duty to yield under VTL § 1111(a)(1) [governing green traffic signals and a driver’s duty to yield to pedestrians lawfully within the crosswalk]. Credibility determinations are for the trier of fact.
Background
Plaintiff, as administrator of the decedent’s estate, alleges the decedent was fatally struck by a box truck driven by defendant Abdulla Al Nahshal and owned by AAA Whole Distributors Corp. The dispositive factual disputes include whether the decedent was within a marked crosswalk and whether he had a green walking signal when the collision occurred. The record contained a police accident report prepared by a non-eyewitness officer and the driver’s statement that he observed the decedent lying outside the clearly marked crosswalk.
Lower Court Decision
Supreme Court, Bronx County granted plaintiff summary judgment on liability, crediting the police report and plaintiff’s showing.
Appellate Division Reversal
Unanimously reversed, on the law, and plaintiff’s motion for summary judgment on liability denied, without costs. The appellate court held the police report was unauthenticated hearsay from a non-eyewitness and, even if considered, failed to establish that the decedent was in the crosswalk or had a green signal. The driver’s testimony that the decedent was outside the crosswalk creates triable issues, and credibility assessments are for the factfinder.
Legal Significance
Reaffirms that in pedestrian-vehicle cases, summary judgment on liability requires admissible, competent proof establishing the pedestrian’s right-of-way and the driver’s breach. Unauthenticated police reports from non-eyewitness officers are insufficient. Disputed facts about crosswalk location and signal status, and credibility issues, preclude summary judgment under VTL § 1146(a) [requiring drivers to exercise due care to avoid colliding with pedestrians] and VTL § 1111(a)(1) [governing green traffic signals and a driver’s duty to yield to pedestrians lawfully within the crosswalk].
A plaintiff seeking summary judgment in a pedestrian knockdown must present admissible evidence proving the pedestrian’s right-of-way and the motorist’s lack of due care; hearsay police reports and disputed facts about crosswalk position or signal status will defeat prima facie entitlement, leaving credibility for the jury.