Supreme Court of New York, Appellate Division Modified the Court’s Order by Deleting the Provision Denying the Plaintiff’s Motion for Summary Judgment

The plaintiff was struck by the defendant’s vehicle as she crossed the street. The plaintiff established, prima facie, that she crossed in the crosswalk and had the pedestrian signal in her favor. As the defendant did not deny that the plaintiff was in the crosswalk at the time of the accident, the assumption of risk doctrine is inapplicable. Thus, the Supreme Court erred in denying the plaintiff’s motion for summary judgment dismissing the first and ninth affirmative defenses. The Supreme Court also erred in denying the dismissal of the fifth affirmative defense, the emergency doctrine, as well as the sixth and eighth affirmative defenses alleging comparative negligence, because the plaintiff was within the crosswalk. 

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