Carrozzi v. Gotham Meat Corp.

181 A.D.2d 587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1992
• Status: Published

Opinion

— Order, Supreme Court, New York County (Anita Florio, J.), entered September 10, 1991, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS court that the parties’ conflicting affidavits and deposition testimony leave unresolved issues of fact in this action for personal injuries involving a motor vehicle accident. These issues include, but are not limited to, whether defendants utilized emergency flashers, waved off oncoming traffic and properly maintained their stalled vehicle prior to the accident. Further, there is the issue of whether plaintiff driver, Elíseo Carrozzi, acted reasonably in his attempt to avoid impact with a bus that was itself attempting to avoid defendants’ stalled vehicle.

As the Court of Appeals has repeatedly stated "[njegligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination.” (Ugarriza v Schmieder, 46 NY2d 471, 474; see also, Andre v Pomeroy, 35 NY2d 361, 364.)

We have reviewed defendants’ remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Wallach, Kassal and Rubin, JJ.