RAPOSO v. Felix Sanchez, et al., Defendants-Appellants. (1998)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered March 5, 1997, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants-appellants sought summary judgment dismissing the complaint as to them upon the ground that defendant Sanchez, the driver of defendant Di-Rich's vehicle, had been confronted with an emergency situation when the car in which plaintiffs were riding suddenly crossed from the westbound lane of traffic into the eastbound lane in the immediate path of the Di-Rich vehicle.   As the motion court found, however, the deposition testimony of plaintiffs and defendant-respondent Ramon Raposo to the effect that there had been an interval of several seconds between the cross-over and the collision raises a triable issue as to whether Sanchez was in fact confronted by an emergency situation and, concomitantly, as to whether Sanchez had a reasonable opportunity under the circumstances to avoid the collision (compare, Caban v. Vega, 226 A.D.2d 109, 111, 640 N.Y.S.2d 58).   Given the existence of these factual issues, it cannot be said as a matter of law that defendants-appellants were not in some measure responsible for the subject accident and therefore, summary judgment was properly denied.

MEMORANDUM DECISION.