Wade Clark Mulcahy LLP

In the matter of<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Beityaaghoob-v.-Klein.pdf">Beityaaghoob v. Klein</a></em>, 2023 NY Slip Op 02488 (2023), plaintiff brought suit to recover for personal injuries when he was struck as a pedestrian by a vehicle driven/owned  by defendants. Plaintiff was denied summary judgment pertaining to liability but appealed.

Generally, a violation of the Vehicles and Traffic Law constitutes negligence per se, absent some extenuating circumstances, making most collisions an uphill battle to defend. In the underlying matter, the Second Department made sure to advise all drivers that they are under an obligation to properly use all of their senses. Plaintiff was struck in the middle of three lanes while he was crossing from the right side of the road.

Although defendant testified at deposition that he never saw the plaintiff before the collision, in fact defendant was under the initial impression that he “struck a tire or something.” adding that the first time he saw plaintiff was when he was laying on the ground.  The court found this argument unavailing, and practically deemed it an admission of liability. Ultimately, they overturned the lower court’s ruling and granted plaintiff summary judgment on liability.

This holding raises an interesting question, primarily, how does one defend against an accident when the plaintiff darts into the road, causing the defendant to not see them before impact, when all they must say at deposition is that they “gave the driver ample time to notice them before they crossed.”  The holding is a tough standard, and places the onus on the driver to do everything within their power to avoid an accident.

Thanks to Christopher Palmieri for his assistance with this article.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.