Last week, the Supreme Court Appellate Division, Second Department reversed a Nassau County Supreme Court finding of summary judgment for a defendant driver in an accident involving a pedestrian. The appellate Court found that the defendant had not established a baseline prima facie case for entitlement to summary judgment, rendering the plaintiff’s opposition to the motion inconsequential.
At a pre-trial deposition, the defendant had testified that she did not see the pedestrian plaintiff prior to her vehicle strinking him. Citing precedent from a 2010 Second Department decision, the Court used this testimony against the defendant’s motion for summary judgment. Per Topalis v. Zwolski, “A driver is bound to see what is there to be seen with the proper use of his [or her] senses.” Because the defendant merely stated that she did not see the plaintiff, without providing reasons or circumstances for this failure, she was unable to establish her initial prima facie burden for summary judgment. Had she introduced evidence or testimony that she had kept a proper lookout, and therefore was not negligent in causing (at least partially) the accident, the burden would have shifted to the plaintiff. At this point the plaintiff would have been required to introduce a triable issue of fact to overcome the defendant’s summary judgment motion. This issue became moot when the Court decided that the defendant had not met her burden.
