CLARKE v. CONDON

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

Joseph CLARKE, et al., appellants, v. Thomas CONDON, Jr., et al., respondents.

Decided: June 24, 2008

REINALDO E. RIVERA, J.P., DAVID S. RITTER, HOWARD MILLER, and MARK C. DILLON, JJ. Finkelstein & Partners, Newburgh, N.Y. (Kristine M. Cahill of counsel), for appellants. James R. McCarl, Montgomery, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 23, 2007, as denied their motion for summary judgment on the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiffs established their prima facie entitlement to summary judgment by submitting evidence showing that a vehicle driven by the defendant Joseph Condon and owned by the defendant Thomas Condon, Jr., crossed a double yellow line in violation of Vehicle and Traffic Law § 1126 (a) and struck an oncoming vehicle driven by the plaintiff Joseph Clarke (see CPLR 3212).   However, a violation of that statute may be excused if it is established that the driver exercised reasonable care in an effort to comply with it (see Aranzullo v. Seidell, 96 A.D.2d 1048, 1049, 466 N.Y.S.2d 690).   Here, the defendants raised a triable issue of fact as to whether the defendant driver exercised reasonable care under the circumstances (see Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115, 216 N.E.2d 324;   Espinal v. Sureau, 262 A.D.2d 523, 524, 691 N.Y.S.2d 335).

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