DAMERAU v. JOHNSON (1999)

Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint.   Although defendants made a prima facie showing of entitlement to judgment as a matter of law (see, Gouchie v. Gill, 198 A.D.2d 862, 605 N.Y.S.2d 709), plaintiffs met their burden of raising a material issue of fact (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The evidence, viewed in the light most favorable to plaintiffs (see, Dix v. Pines Hotel, 188 A.D.2d 1007, 592 N.Y.S.2d 993), establishes an issue of fact whether defendant Roy L. Johnson had sufficient time to take evasive action after the motor vehicle driven by plaintiff Albert B. Damerau entered his lane (see, Gaeta v. Morgan, 178 A.D.2d 732, 734, 576 N.Y.S.2d 962).

Order unanimously affirmed without costs.

MEMORANDUM: