Stoehr v. Levere

183 A.D.2d 886, 584 N.Y.S.2d 144, 1992 N.Y. App. Div. LEXIS 7599

Opinion

— In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered June 26, 1990, as upon granting renewal, adhered to an original determination made in an order dated May 7, 1990 denying his motion for summary judgment on the issue of liability.

Ordered that the order is affirmed insofar as appealed from, with costs.

Summary judgment will not be granted where a movant has not established a prima facie entitlement thereto (Carrini v Supermarkets Gen. Corp., 158 AD2d 303). Where questions of fact are evident, summary judgment is inappropriate (CPLR 3212 [b]; Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572).

Here, the plaintiff alleges that his motorcycle collided with the defendant’s automobile when the defendant made a U-turn across a double yellow line. To be determined at a trial are issues of fact concerning, inter alia, the respective speeds of both vehicles, whether the operators saw what was there to be seen, and whether the accident could have been avoided. Bracken, J. P., Sullivan, Eiber and Pizzuto, JJ., concur.