RHODES v. UNITED PARCEL SERVICE (2006)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 25, 2005, which denied defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

The court properly denied defendants' motion for summary judgment since questions of fact exist as to the applicability of the emergency doctrine, including whether defendant Kippins kept the vehicle he was driving a safe distance from plaintiff's van, whether he was traveling at an unsafe rate of speed given the rain and wet road, whether he timely applied the brakes, and whether plaintiff's vehicle was propelled backward in a southerly direction into Kippins' vehicle (see e.g. Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001];  Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991];  Rabassa v. Caldas, 306 A.D.2d 137, 760 N.Y.S.2d 318 [2003];  Quiles v. Greene, 291 A.D.2d 345, 739 N.Y.S.2d 30 [2002] ).   In view of these same issues, the cross motion for summary judgment as to liability was properly denied as well (cf. Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 [1999] ).