DAYONG LIU v. Robert W. O'Reilly, Defendant-Appellant. (2011)

Order, Supreme Court, New York County (George J. Silver, J.), entered April 23, 2010, which, in an action for personal injuries, wrongful death and negligent infliction of emotional distress arising out of an automobile accident, denied defendant-appellant O'Reilly's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

The record demonstrates that the vehicle driven by co-defendant Peng Cheng was traveling in the westbound lane of a two-lane highway, which is divided by a double yellow line. O'Reilly was traveling in the eastbound lane when Cheng lost control of his vehicle, which spun around and crossed into the lane of traffic where O'Reilly was traveling. The rear of the Cheng vehicle was then struck by the front of O'Reilly's vehicle in the eastbound lane.

O'Reilly contends that Cheng is solely liable for the accident as his vehicle crossed over a double yellow line in violation of New York Vehicle and Traffic Law § 1126(a), and that O'Reilly was not required to anticipate that a vehicle traveling in the opposite direction would cross over into oncoming traffic. O'Reilly, however, failed to establish his entitlement to judgment as a matter of law, because, although demonstrating the existence of an emergency situation, there is no evidence with respect to what, if any, reasonable action O'Reilly took to avoid the accident (see Caristo v. Sanzone, 96 N.Y.2d 172, 175 [2001] ).

Furthermore, even assuming O'Reilly did meet his initial burden, plaintiffs and Cheng raised triable issues of fact as to whether there was a sufficient time interval between the crossover of Cheng's vehicle and the collision for O'Reilly to have taken reasonable steps to avoid the collision. They both averred that Cheng's vehicle came to a complete stop after spinning into the eastbound lane and was stopped for more than ten seconds before being struck by the O'Reilly vehicle and that other vehicles were able to pass the Cheng vehicle without incident (see Quiles v. Greene, 291 A.D.2d 345 [2002]; Trevino v. Castro, 256 A.D.2d 6 [1998]; Raposo v. Raposo, 250 A.D.2d 420 [1998] ). The affidavits of plaintiffs and Cheng consisted of more than mere speculation that O'Reilly could have done something to avoid hitting Cheng's car.