          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

531
CA 12-02124
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


NANCY BURKHART, SISTER AND LEGAL GUARDIAN FOR
BRIAN BURKHART, PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

PEOPLE, INC., ELISA SMITH, KATELYNNE COLEMAN,
AMY MAZURKIEWICZ, DEFENDANTS-RESPONDENTS,
LUCIAN VISONE AND LAKEFRONT CONSTRUCTION, INC.,
DEFENDANTS-APPELLANTS.


HAGELIN KENT LLC, BUFFALO (MICHAEL T. HAGELIN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT, FOR PLAINTIFF-RESPONDENT.

DAMON MOREY LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Catherine
Nugent Panepinto, J.), entered February 2, 2012. The order denied the
motion of defendants Lucian Visone and Lakefront Construction, Inc., for
summary judgment on the issue of negligence.

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

     Memorandum: Plaintiff commenced this action on behalf of her
brother seeking damages for injuries he sustained when he was struck by a
vehicle operated by defendant Lucian Visone and owned by defendant
Lakefront Construction, Inc. (Lakefront). Visone and Lakefront appeal
from an order denying their motion for partial summary judgment on the
issue of Visone’s negligence. We affirm. Visone and Lakefront failed to
submit evidence sufficient to establish, prima facie, that the alleged
negligence of the other defendants or of plaintiff’s brother “was the
sole proximate cause of the accident, that [Visone] kept a proper
lookout, and that [Visone’s] alleged negligence, if any, did not
contribute to the happening of the accident” (Topalis v Zwolski, 76 AD3d
524, 525; see Sauter v Calabretta, 90 AD3d 1702, 1704). Visone and
Lakefront failed to establish in support of their motion that plaintiff’s
brother “suddenly ‘darted out . . . directly into the path of the . . .
vehicle’ ” (St. Andrew v O’Brien, 45 AD3d 1024, 1027-1028, lv denied and
dismissed 10 NY3d 929) or that Visone complied with his “duty to see that
which through the proper use of his senses he should have seen” (Lupowitz
v Fogarty, 295 AD2d 576, 576; see Rost v Stolzman, 81 AD3d 1401, 1402;
                                 -2-                          531
                                                        CA 12-02124

Hyatt v Messana, 67 AD3d 1400, 1402). Visone and Lakefront thus failed
to meet their initial burden on their motion (see generally Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
