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

Robin RUSSELL, Individually and as Administratrix of the Estate of Ronald L. Russell, Deceased, Plaintiff-Respondent, v. CITY OF BUFFALO, Buffalo Police Department and Thomas Bluff, Defendants-Appellants.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, SCUDDER, SMITH, AND PINE, JJ. Connors & Vilardo, LLP, Buffalo (John T. Loss of Counsel), for Defendants-Appellants. Francis M. Letro, Esq., Buffalo (Kathleen J. Martin of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this personal injury and wrongful death action, individually and on behalf of her husband (decedent), who was killed when a vehicle owned by defendant City of Buffalo and driven by defendant Thomas Bluff, an on-duty police officer, collided with the motorcycle driven by decedent.   Supreme Court properly denied defendants' motion for summary judgment dismissing the amended complaint.   Defendants contended in support of their motion that plaintiff's version of events was a physical impossibility because the accident occurred off the roadway.   Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiff raised a triable issue of fact with respect to that issue (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiff submitted the affidavits of two eyewitnesses to the accident, who averred that they witnessed the accident and observed the police vehicle driving onto the travel portion of the roadway into the path of decedent's oncoming motorcycle, and defendants offered no evidence to support their contention that the version of the accident set forth by plaintiff's eyewitnesses was a physical impossibility (cf. Hardy v. Lojan Realty Corp., 303 A.D.2d 457, 755 N.Y.S.2d 901;  Braithwaite v. Equitable Life Assur. Socy. of U.S., 232 A.D.2d 352, 648 N.Y.S.2d 628).

We agree with defendants that the court erred in determining that they improperly raised for the first time in their reply papers the issue whether decedent was negligent as a matter of law because he was speeding and was intoxicated at the time of the accident.   Rather, the record establishes that defendants adequately raised that issue in their initial moving papers.   Nevertheless, we conclude that the issue concerning decedent's negligence as a matter of law based on speeding is now moot because a trial has since been conducted, and the court charged the jury that decedent was speeding and thus was negligent as a matter of law.   We further conclude that, although defendants met their initial burden on the motion with respect to decedent's negligence as a matter of law based on intoxication, plaintiff raised an issue of fact whether decedent was intoxicated by submitting the affirmation of a certified anatomic and clinical pathologist and the affidavit of an engineer/accident reconstructionist (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

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