Baker v. Chandler

—Judgment unanimously reversed on the law with costs, motion denied and complaint and third-party complaint reinstated. Memorandum: Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint and in dismissing, sua sponte, the third-party complaint. There is a triable issue of fact whether Wesley L. Chandler (defendant), “in the exercise of reasonable care, should have taken some evasive action to avoid the collision with [decedent’s] motorcycle” (Acker v Anderson, 193 AD2d 1121). The issue whether defendant was negligent in the operation of his vehicle between the time he first observed decedent’s motorcycle and the collision is one of fact for the jury to resolve (see, Palmer v Rouse, 232 AD2d 909, 911). (Appeal from Judgment of Supreme Court, Erie County, Howe, J. — Summary Judgment.) Present — Green, J. P., Pine, Wisner, Callahan and Balio, JJ.