Davis v. Stuckey

Order, Supreme Court, New York County (George J. Silver, J.), entered April 23, 2010, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant’s motion for summary judgment was properly denied in this action where infant plaintiff pedestrian was injured when he was struck by defendant’s car as he was running across the street. The deposition testimony of the parties, as well as the testimony of a nonparty witness, was conflicting and raises triable issues of fact with respect to the details of the accident, thereby precluding summary judgment based upon the applicability of the emergency doctrine (see Rhodes v United Parcel Serv., 33 AD3d 455 [2006]; compare Brown v Muniz, 61 AD3d 526, 526-527 [2009], lv denied 13 NY3d 715 [2010]). Concur—Gonzalez, P.J., Sweeny, Moskowitz, Acosta and Manzanet-Daniels, JJ.