WILLIAMS v. DORAN

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

Benjamin WILLIAMS, Plaintiff-Respondent, v. William F. DORAN, et al., Defendants-Appellants.

Decided: June 26, 1997

Before SULLIVAN, J.P., and MILONAS, ELLERIN, TOM and MAZZARELLI, JJ. Bridget Saro, for Plaintiff-Respondent. Elizabeth Anne Bannon, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered September 25, 1996, which, in an action for personal injuries arising out of an automobile accident, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Clear issues of fact as to whether defendants' negligence contributed to the accident are raised by the ample evidentiary proof plaintiff submitted on the motion, including his deposition testimony that his vehicle was struck from behind, the police report indicating that the only two vehicles involved in the accident were plaintiff's and defendants', the damage each sustained, and the opinion of an accident reconstruction expert.   We would also note that defendants' claim that plaintiff's vehicle was struck in the rear by an unidentified vehicle, causing it to veer into the lane of traffic in which defendants' vehicle was traveling, is nothing but speculation by their attorney, which would have to be accepted as true in order to reach the issue of whether defendants cannot be held liable as a matter of law under the emergency doctrine they invoke.   At best, the deposition testimony of defendant driver that he suddenly saw plaintiff's vehicle veer into his lane of traffic from the left raises issues of fact as to whether an emergency existed when he first observed plaintiff's vehicle, and, if so, whether his own negligence created or contributed thereto (cf., Caban v. Vega, 226 A.D.2d 109, 640 N.Y.S.2d 58).

MEMORANDUM DECISION.