A.C. ex rel. Naminata C. v. Ajisogun

Order, Supreme Court, Bronx County (Kenneth L. Thompson

“A driver in an area where children are playing need not exercise ‘extreme care or caution,’ although [he] must exercise the care that a reasonably prudent person would exercise under the circumstances” (DeJesus v Alba, 63 AD3d 460 , 463 [1st Dept 2009], affd 14 NY3d 860 [2010]). Here, defendant established his entitlement to judgment as a matter of law by producing evidence that he was not speeding, driving only about 5-10 miles per hour, and that the infant plaintiff ran out from between two parked cars into the side of his vehicle (see Fatumata B. v Pioneer Transp. Corp., 118 AD3d 486 , 486 [1st Dept 2014]; DeJesus, 63 AD3d at 463 ; Yahya v Kahan, 136 AD3d 644 , 645 [2d Dept 2016]).

No issues of fact exist as to whether defendant’s speed was excessive under the circumstances (see DeJesus, 63 AD3d at 464 ; Fatumata B., 118 AD3d at 487 ). Contrary to plaintiffs’ argument, Ferrer v Harris ( 55 NY2d 285 [1982]) does not stand for the broad proposition that a driver’s negligence is always a question of fact when the driver was aware that children were possibly present. Plaintiffs failed to raise a triable issue of fact as to whether defendant ought to have seen the infant plaintiff before the impact. Accordingly, the point of impact was not a material issue of fact warranting denial of summary judgment (see Hinkle v Trejo, 89 AD3d 631 [1st Dept 2011], lv denied 19 NY3d 807 [2012]).

We have considered plaintiffs’ remaining arguments and find them unavailing.

Concur — Sweeny, J.P., Moskowitz, Kahn and Gesmer, JJ.