Opinion
7138 Index 159584/13
09-25-2018
Paul W. KAPLAN, et al., Plaintiffs–Respondents, v. Anatoliy TSIRLIN, et al., Defendants, Priory Cab Corp., et al., Defendants–Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for appellants. Mitchell Dranow, Sea Cliff, for respondents.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Robert D. Grace of counsel), for appellants.
Mitchell Dranow, Sea Cliff, for respondents.
Acosta, P.J., Sweeny, Manzanet–Daniels, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about July 1, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for partial summary judgment on the issue of liability as against defendants Priory Cab Corp. and Sonam Tenzin, unanimously reversed, on the law, without costs, and the motion denied.
In this action arising from a three-car accident, defendant Tenzin testified that defendant Hoque's taxi suddenly cut into his lane of traffic and, although Tenzin honked and turned left, the Hoque taxi hit the front of his taxi. According to Tenzin, Hoque then returned to the middle lane but lost control of his vehicle, swerved and re-entered Tenzin's lane of traffic sideways. Tenzin honked, braked, and moved to the left of his lane, but was unable to avoid hitting the side of Hoque's taxi. Defendant Tsirlin testified that the rear of Hoque's sideways taxi hit the side of his vehicle in the middle lane, but he was unsure about the sequence of events before that. The injured plaintiff was a passenger in Hoque's taxi and did not see how the accident occurred.
In view of the foregoing, the court properly found that plaintiffs established the injured plaintiff's lack of culpability as a matter of law (see Oluwatayo v. Dulinayan, 142 A.D.3d 113, 35 N.Y.S.3d 84 [1st Dept. 2016] ; Mello v. Narco Cab Corp., 105 A.D.3d 634, 963 N.Y.S.2d 581 [1st Dept. 2013] ). However, the court erred in finding that the record also established the Tenzin defendants' liability as a matter of law. While plaintiffs contend that Tenzin's failure to notice Hoque's vehicle in the adjoining lane before the accident was negligent, the record as a whole presents triable issues as to whether Tenzin acted reasonably in reaction to a sudden emergency presented by Hoque's vehicle unexpectedly cutting into his lane (see Maisonet v. Roman, 139 A.D.3d 121, 30 N.Y.S.3d 24 [1st Dept. 2016], appeal dismissed 27 N.Y.3d 1062, 35 N.Y.S.3d 295, 54 N.E.3d 1166 [2016] ; Weston v. Castro, 138 A.D.3d 517, 29 N.Y.S.3d 344 [1st Dept. 2016] ).