Opinion
2013-10-4
Richard POTTER, Plaintiff–Respondent, v. STEVENS VAN LINES, INC. and David J. Fisk, Defendants–Appellants.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Kristen M. Benson of Counsel), for Defendants–Appellants. McMahon, Kublick & Smith, P.C., Syracuse (Jan S. Kublick of Counsel), for Plaintiff–Respondent.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Kristen M. Benson of Counsel), for Defendants–Appellants. McMahon, Kublick & Smith, P.C., Syracuse (Jan S. Kublick of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this negligence action seeking damages for injuries he sustained in a motor vehicle accident. It is undisputed that plaintiff's vehicle collided with a vehicle operated by David J. Fisk (defendant) and owned by defendant Stevens Van Lines, Inc. when plaintiff swerved to avoid Fisk's vehicle that was entering the roadway from a driveway. Supreme Court properly granted plaintiff's motion to the extent that he sought summary judgment on the issues of defendants' liability ( 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). The court erred, however, in granting that part of the motion insofar as plaintiff sought summary judgment on the issue of his own negligence inasmuch as defendant, by his expert's affidavit, raised an issue of fact whether plaintiff had ample time in which to stop his vehicle and avoid the collision ( see Tiwari v. Tyo, 106 A.D.3d 1462, 1463, 966 N.Y.S.2d 304;see generally Richards v. Bartholomew, 60 A.D.3d 1405, 1406, 875 N.Y.S.2d 404). We therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking a determination that defendants' negligence was the sole proximate cause of the accident and as modified the order is affirmed without costs.