           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
88
CA 10-01970
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


DALE R. GELSTER, PLAINTIFF-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

MARIA L. JAOUDE, DEFENDANT-APPELLANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS P. KAWALEC OF
COUNSEL), FOR DEFENDANT-APPELLANT.

O’BRIEN BOYD, P.C., WILLIAMSVILLE (CHRISTOPHER J. O’BRIEN OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered June 11, 2010 in a personal injury action.
The order denied the motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

      Memorandum: Supreme Court properly denied defendant’s motion for
summary judgment dismissing the complaint. Defendant met her initial
burden by establishing that plaintiff, a pedestrian, unexpectedly
darted into the path of her vehicle (see Jellal v Brown, 37 AD3d 179;
Sheppeard v Murci, 306 AD2d 268; Ash v McNamara, 288 AD2d 956, lv
denied 97 NY2d 612). In opposition to the motion, however, plaintiff
raised a triable issue of fact whether defendant was speeding at the
time of the accident (see generally Zuckerman v City of New York, 49
NY2d 557, 562). Contrary to defendant’s contention, the deposition
testimony of a non-party witness regarding defendant’s speed was not
so inconsistent or speculative as to render it insufficient to defeat
the motion (cf. Sheppeard, 306 AD2d 268; Wolf v We Transp., 274 AD2d
514).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
