Fourth Department – Hit-and-run: Hunter v. Motor Vehicle Accident Indemnification Corp.

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Hit-and-run — Negligence — Sufficiency of evidence

Hunter v. Motor Vehicle Accident Indemnification Corp.

CA 23-01436

Appealed from Supreme Court, Erie County

Background: The plaintiff commenced an action seeking damages for injuries she sustained in a hit-and-run accident. She was walking in a roadway at 1:30 a.m. when she was hit by an unidentified vehicle causing her to fly in the air and land on the hood of the vehicle. The driver sped away. She appeals the grant of summary judgment to the defendant.

Ruling: The Appellate Division affirmed. The court held that the medical records from the hospital visit the following day were admissible as the statements where she was allegedly struck are germane to the diagnosis and to the happening of an injury as in the case where the records are inconsistent with her deposition. The plaintiff also failed to establish that the driver failed to exercise due care or committed a violation of the Vehicle and Traffic Law. Finally, she was crossing a dark street in dark clothes in the middle of the night.

Brian K. Towey, Towey Law, plaintiff-appellant; Scott A. Dow, of Kornfeld, Rew, Newman & Simeone, for the defendant-respondent.

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