
    Rose A. Calia, as Administratrix of the Estate of Jenine M. Calia, Deceased, Plaintiff, v Anna Khoury, Defendant.
    Supreme Court, Special Term, Ulster County,
    June 1, 1982
    APPEARANCES OF COUNSEL
    
      Joseph J. Leccese for plaintiff. Gerald E. McCloskey for defendant.
   OPINION OF THE COURT

Lawrence E. Kahn, J.

Plaintiff seeks an order pursuant to CPLR 3212 granting summary judgment on the issue of defendant’s liability in this action for the wrongful death of Jenine Marie Calia. The complaint alleges that the decedent was struck by an automobile driven by the defendant at a time when she was descending from a stopped school bus which had in operation, its flashing red visual signals and/or lights. The defendant was convicted of a violation of subdivision (a) of section 1174 of the Vehicle and Traffic Law after a jury trial in the Justice Court of the Town of Saugerties, County of Ulster.

Movant asserts that the above section of the Vehicle and Traffic Law imposes absolute liability upon the defendant, and further, that the conviction in Justice Court requires the granting of summary judgment in this wrongful death action.

In this department, the Appellate Division has held that a violation of subdivision (a) of section 1174 of the Vehicle and Traffic Law does indeed impose absolute liability (Dean v Baumann, 39 AD2d 138). However, the Justice Court conviction may not serve as a basis for the granting of the motion for summary judgment. “[T]he granting of such a motion is the procedural equivalent of a trial.” (Falk v Goodman, 7 NY2d 87, 91.) Defendant did not plead guilty to the traffic violation, but rather, was found guilty after trial. “[A] conviction of a traffic infraction after trial on a not guilty plea is inadmissible against a defendant in a civil suit arising out of the same facts.” (Richardson, Evidence [8th ed], § 369, p 335.) Whether a violation of subdivision (a) of section 1174 of the Vehicle and Traffic Law has occurred will be a question of fact for the jury upon the trial of this Supreme Court action. A finding that a violation has occurred will then impose absolute liability upon the defendant. However, as aforesaid, the Justice Court conviction may not be substituted for this finding.

The motion for summary judgment upon the ground of defendant’s conviction of a violation of subdivision (a) of section 1174 of the Vehicle and Traffic Law on September 23, 1980 in the Justice Court, Town of Saugerties, County of Ulster, shall be denied, without costs.  