KWEH, OPHELIA v. EDMUNDS, CHRISTOPHER C.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [372] CA 11-02147 PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ. OPHELIA KWEH, AS GUARDIAN OF THE PERSON AND PROPERTY OF JOHN KWEH, AND OPHELIA KWEH, PLAINTIFF-RESPONDENT, V MEMORANDUM AND ORDER CHRISTOPHER C. EDMUNDS, PATRICK D. SAMPSON, SKINNER SALES, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT. (ACTION NO. 1.) ---------------------------------------------- OPHELIA KWEH, AS ADMINISTRATRIX OF THE ESTATE OF SAMPSON KWEH, DECEASED, PLAINTIFF-RESPONDENT, V CHRISTOPHER C. EDMUNDS, PATRICK D. SAMPSON, SKINNER SALES, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT. (ACTION NO. 2.) ---------------------------------------------- PHILIP KWEH, PLAINTIFF-RESPONDENT, V CHRISTOPHER C. EDMUNDS, PATRICK D. SAMPSON, SKINNER SALES, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT. (ACTION NO. 3.) ---------------------------------------------- KADRA DAYOW, AS ADMINISTRATRIX OF THE ESTATE OF MOHAMED DAYOW, DECEASED, PLAINTIFF-RESPONDENT, V OPHELIA KWEH, AS ADMINISTRATRIX OF THE ESTATE OF JUTY KWEH, DECEASED, DEFENDANT, PATRICK D. SAMPSON AND CHRISTOPHER C. EDMUNDS, DEFENDANTS-APPELLANTS. (ACTION NO. 4.) ---------------------------------------------- -2- 372 CA 11-02147 KADRA DAYOW, AS ADMINISTRATRIX OF THE ESTATE OF MOHAMED DAYOW, DECEASED, PLAINTIFF-RESPONDENT, V SKINNER SALES, INC., DEFENDANT-APPELLANT. (ACTION NO. 5.) COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF COUNSEL), FOR DEFENDANTS-APPELLANTS. BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA (RICHARD PERTZ OF COUNSEL), THE GOLDEN LAW FIRM, AND PETER M. HOBAICA LLC, FOR PLAINTIFFS-RESPONDENTS. Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered February 15, 2011 in personal injury and wrongful death actions. The order, insofar as appealed from, denied the motion of defendants Christopher C. Edmunds, Patrick D. Sampson and Skinner Sales, Inc. for summary judgment dismissing the complaints and all cross claims against them. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiffs commenced these negligence and wrongful death actions stemming from a motor vehicle accident that occurred when a vehicle operated by decedent Juty Kweh (Kweh) collided with a vehicle operated by defendant Christopher C. Edmunds. The collision occurred when Edmunds and Kweh were driving in opposite directions on a two-lane highway, and the vehicle driven by Kweh entered Edmunds’s lane of travel. Supreme Court properly denied the motion of Edmunds, defendant Patrick D. Sampson, and defendant Skinner Sales, Inc. (hereafter, defendants) for summary judgment seeking dismissal of the complaints and all cross claims against them. In order to establish their entitlement to summary judgment based on the emergency doctrine in this crossover case, defendants were required to establish “both that [Kweh’s] vehicle ‘suddenly entered the lane where [Edmunds] was operating [his vehicle] in a lawful and prudent manner and that there was nothing [Edmunds] could have done to avoid the collision’ ” (Fratangelo v Benson, 294 AD2d 880, 881 , quoting Pilarski v Consolidated Rail Corp., 269 AD2d 821, 822 ; see Rost v Stolzman, 81 AD3d 1401, 1402 ). Defendants failed to meet that burden inasmuch as the proof submitted by them in support of their motion, including the accident reconstruction analysis and Edmunds’s deposition testimony, raises an issue of fact whether Edmunds was negligent in failing to take sufficient evasive action (see Testerman v Zielinski, 68 AD3d 1751, 1752-1753 ; Fratangelo, 294 AD2d at 881 ). In any event, plaintiffs raised a triable issue through their expert’s affidavit (see Richards v Bartholomew, 60 AD3d 1405, 1406 ). Contrary to -3- 372 CA 11-02147 defendants’ contention, the expert had a sufficient evidentiary -4- 372 CA 11-02147 foundation to support his opinions (cf. Rost, 81 AD3d at 1403 ). Entered: March 16, 2012 Frances E. Cafarell Clerk of the Court