Case v. Nitzberg

¶1—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. While driving past a posted worksite, defendant struck Clifford W. Case (plaintiff), an employee of third-party defendant, Syracuse Utilities, Inc., who was running cable between utility poles alongside the road. Although there is proof that plaintiff inadvertently stepped into defendant’s path from behind a truck parked one foot off the road, a jury could find that a proximate cause of the accident was defendant’s inattention and failure to give the truck a wide berth within defendant’s lane. “When warned of the presence of workers, a motorist must be cognizant of the fact that they may not constantly attend to traffic, and must operate his vehicle accordingly” (78 Am Jur 2d, Automobiles and Highway Traffic, § 689, at 260 [1997 ed]). Whether defendant acted reasonably under the circumstances cannot be determined as a matter of law (see, Ugarriza v Schmieder, 46 NY2d 471, 473). (Appeal from Order of Supreme Court, Onondaga County, Stone, J.— Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ..