Rhodes v. United Parcel Service

33 A.D.3d 455, 822 N.Y.S.2d 521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 25, 2005, which denied defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

The court properly denied defendants’ motion for summary judgment since questions of fact exist as to the applicability of the emergency doctrine, including whether defendant Kippins kept the vehicle he was driving a safe distance from plaintiff s van, whether he was traveling at an unsafe rate of speed given the rain and wet road, whether he timely applied the brakes, and whether plaintiff’s vehicle was propelled backward in a southerly direction into Kippins’ vehicle (see e.g. Caristo v Sanzone, 96 NY2d 172 [2001]; Rivera v New York City Tr. Auth., 77 NY2d 322 [1991]; Rabassa v Caldas, 306 AD2d 137 [2003]; Quiles v Greene, 291 AD2d 345 [2002]). In view of these same issues, the cross motion for summary judgment as to liability was properly denied as well (cf. Johnson v Phillips, 261 AD2d 269 [1999]). Concur—Buckley, RJ., Tom, Marlow, Nardelli and Williams, JJ.