Damerau v. Johnson

Appellate Division of the Supreme Court of New York

Damerau v. Johnson

265 A.D.2d 927, 695 N.Y.S.2d 805, 1999 N.Y. App. Div. LEXIS 10065

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 1999

StatusPublished

Cited by2 cases

This text of 265 A.D.2d 927 (Damerau v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Damerau v. Johnson, 265 A.D.2d 927, 695 N.Y.S.2d 805, 1999 N.Y. App. Div. LEXIS 10065 (N.Y. Ct. App. 1999).

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Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Although defendants made a prima facie showing of entitlement to judgment as a matter of. law (see, Gouchie v Gill, 198 AD2d 862), plaintiffs met their burden of raising a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). The evidence, viewed in the light most favorable to plaintiffs (see, Dix v Pines Hotel, 188 AD2d 1007), establishes an issue of fact whether defendant Roy L. Johnson had sufficient time to take evasive action after the motor vehicle driven by plaintiff Albert B. Damerau entered his lane (see, Gaeta v Morgan, 178 AD2d 732, 734). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Callahan, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Although defendants made a prima facie showing of entitlement to judgment as a matter of. law (see, Gouchie v Gill, 198 AD2d 862), plaintiffs met their burden of raising a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). The evidence, viewed in the light most favorable to plaintiffs (see, Dix v Pines Hotel, 188 AD2d 1007), establishes an issue of fact whether defendant Roy L. Johnson had sufficient time to take evasive action after the motor vehicle driven by plaintiff Albert B. Damerau entered his lane (see, Gaeta v Morgan, 178 AD2d 732, 734). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Summary Judgment.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Callahan, JJ.

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Bluebook (online)

265 A.D.2d 927, 695 N.Y.S.2d 805, 1999 N.Y. App. Div. LEXIS 10065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damerau-v-johnson-nyappdiv-1999.

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