RICHARDS v. BARTHOLOMEW (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

Magdalen RICHARDS, Individually and as Executrix of the Estate of William J. Richards, Deceased, Plaintiff-Respondent, v. Angela BARTHOLOMEW, Defendant-Appellant.

Decided: March 20, 2009

PRESENT: HURLBUTT, J.P., MARTOCHE, CARNI, GREEN, AND PINE, JJ.

Law Offices of Laurie G. Ogden, Syracuse (Louise A. Boillat of Counsel), for Defendant-Appellant. Bond, Schoeneck & King, PLLC, Syracuse (Suzanne Messer of Counsel), for Plaintiff-Respondent Magdalen Richards, Individually and as Executrix of the Estate of William J. Richards, Deceased. Harris Beach PLLC, Syracuse (Lauren H. Seiter of Counsel), for Plaintiff-Respondent Estate of William J. Richards, Deceased, on the Counterclaim.

This action was commenced by plaintiff and plaintiff's decedent, who died during the pendency of the action, whereupon plaintiff was substituted as executrix of decedent's estate. Plaintiff, individually and on behalf of decedent, seeks damages for injuries they sustained when the vehicle operated by decedent in which plaintiff was a passenger collided with a vehicle operated by defendant. Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. Even assuming, arguendo, that defendant met her initial burden of establishing that she was operating her vehicle in a lawful and prudent manner when the vehicle operated by decedent unexpectedly entered her lane and that there was no evasive action that she could have taken to avoid the accident (see Fratangelo v. Benson, 294 A.D.2d 880, 881, 741 N.Y.S.2d 798; Pilarski v. Consolidated Rail Corp., 269 A.D.2d 821, 702 N.Y.S.2d 485), we conclude that plaintiff's expert raised a triable issue of fact on the issue whether defendant could have taken evasive action to avoid the accident (see Esposito v. Wright, 28 A.D.3d 1142, 1143-1144, 814 N.Y.S.2d 430).

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

MEMORANDUM:

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