Opinion
2001-10851, 2002-00176
Submitted June 7, 2002.
September 10, 2002.
In an action to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated November 26, 2001, which granted the plaintiff's motion for summary judgment on the issue of liability, and (2) an interlocutory judgment of the same court, entered December 20, 2001, which is in favor of the plaintiff and against her on the issue of liability.
Marc D. Orloff, P.C., Goshen, N.Y. (Anthony J. Perna, Jr., of counsel), for appellant.
Goldstein Metzger, LLP, Poughkeepsie, N.Y. (Paul J. Goldstein and Andrew L. Spitz of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
ORDERED that the interlocutory judgment is reversed, on the law, the order dated November 26, 2001, is vacated, and the plaintiff's motion for summary judgment on the issue of liability is denied; and it is further,
ORDERED that the appeal from the order is dismissed as academic; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
Summary judgment will only be granted if there is no triable issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Although the plaintiff made out a prima facie case in her motion for summary judgment, the defendant established, in opposition thereto, that there are triable issues of fact as to whether she was negligent in the operation of her vehicle before it skidded off the roadway, and whether she was confronted with an emergency situation when her right rear tire became stuck in a groove in the roadway (see Malatesta v. Hopf, 163 A.D.2d 651, affd 77 N.Y.2d 828).
O'BRIEN, J.P., KRAUSMAN, SCHMIDT and COZIER, JJ., concur.