Caldon v Tarazona

Caldon v Tarazona 2007 NY Slip Op 09355 [45 AD3d 797] November 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Carlos Caldon, Appellant,
v
William Tarazona, Defendant, and Oscar Manzano, Respondent.

—[*1] Larry Dorman, P.C., Astoria, N.Y., for appellant.

Mendolia & Stenz, Westbury, N.Y. (Tracy Morgan of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), dated May 19, 2006, as granted that branch of the motion of the defendant Oscar Manzano which was for summary judgment dismissing the complaint insofar as asserted against him.

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

The plaintiff was a passenger in a vehicle operated by the defendant Oscar Manzano in an easterly direction. The defendant William Tarazona was driving in a westerly direction when he lost control of his vehicle and entered the opposite lane of traffic. Manzano was unable to stop his vehicle in time to avoid a collision. In these circumstances, Manzano established his entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that he was faced with an emergency situation not of his own making when Tarazona crossed over into the eastbound lane of traffic and that Manzano acted reasonably under the circumstances (see Cheung v Dominican Convent of Our Lady of Rosary, 22 AD3d 450, 451 [2005]; Boos v Bedrock Materials, Inc., 16 AD3d 447 [2005]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether Manzano contributed to the accident (id.)

Accordingly, summary judgment was properly granted to Manzano. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.