Caraway v Johnson

Caraway v Johnson 2009 NY Slip Op 06230 [65 AD3d 605] August 18, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 30, 2009

Oismer R. Caraway, Appellant,
v
Deborah Johnson, Respondent.

—[*1] O'Neil & Burke, LLP, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), for appellant.

McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated November 9, 2007, which denied his motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

This action arises from a one-car motor vehicle accident which occurred on the evening of December 12, 2003, in Dutchess County. The plaintiff was a front-seat passenger in the defendant's vehicle when the vehicle allegedly encountered a patch of ice, skidded out of control, and struck a guardrail.

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability. Although the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability, in opposition, the defendant raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Spolzino, J.P., Dillon, Miller and Dickerson, JJ., concur.