| Dayong Liu v Peng Cheng |
| 2011 NY Slip Op 01520 [82 AD3d 405] |
| March 1, 2011 |
| Appellate Division, First Department |
| Dayong Liu, Individually and as Administrator of the Estate ofZhengfan Liu, Deceased, et al., Respondents, v Peng Cheng, Respondent, and Robert W.O'Reilly, Appellant. |
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Order, Supreme Court, New York County (George J. Silver, J.), entered April 23, 2010,which, in an action for personal injuries, wrongful death and negligent infliction of emotionaldistress arising out of an automobile accident, denied defendant-appellant O'Reilly's motion forsummary judgment dismissing the complaint as against him, unanimously affirmed, withoutcosts.
The record demonstrates that the vehicle driven by codefendant Peng Cheng was traveling inthe westbound lane of a two-lane highway, which is divided by a double yellow line. O'Reillywas traveling in the eastbound lane when Cheng lost control of his vehicle, which spun aroundand crossed into the lane of traffic where O'Reilly was traveling. The rear of the Cheng vehiclewas then struck by the front of O'Reilly's vehicle in the eastbound lane.
O'Reilly contends that Cheng is solely liable for the accident as his vehicle crossed over adouble yellow line in violation of Vehicle and Traffic Law § 1126 (a), and that O'Reillywas not required to anticipate that a vehicle traveling in the opposite direction would cross overinto oncoming traffic. O'Reilly, however, failed to establish his entitlement to judgment as amatter of law, because, although demonstrating the existence of an emergency situation, there isno evidence with respect to what, if any, reasonable action O'Reilly took to avoid the accident(see Caristo v Sanzone, 96 NY2d 172, 175 [2001]).
Furthermore, even assuming O'Reilly did meet his initial burden, plaintiffs and Cheng raisedtriable issues of fact as to whether there was a sufficient time interval between the crossover ofCheng's vehicle and the collision for O'Reilly to have taken reasonable steps to avoid thecollision. They both averred that Cheng's vehicle came to a complete stop after spinning into theeastbound lane and was stopped for more than ten seconds before being struck by the O'Reillyvehicle and that other vehicles were able to pass the Cheng vehicle without [*2]incident (see Quiles v Greene, 291 AD2d 345 [2002];Trevino v Castro, 256 AD2d 6 [1998]; Raposo v Raposo, 250 AD2d 420 [1998]).The affidavits of plaintiffs and Cheng consisted of more than mere speculation that O'Reillycould have done something to avoid hitting Cheng's car. Concur—Gonzalez, P.J., Tom,Andrias, Renwick and Abdus-Salaam, JJ.