Hernandez v. Fajardo

Order, Supreme Court, New York County (Milton Tingling, J.), entered on or about October 1, 2001, which denied defendant Sportiello’s motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

Summary judgment was properly denied since triable issues exist as to whether defendant Sportiello was negligent when his vehicle struck the vehicle operated by defendant Fajardo from behind, or whether Sportiello was presented with an emergency situation when the Fajardo vehicle, which may have been attempting to avoid a collision with a third automobile, crossed over into the lane in which Sportiello’s vehicle was travelling (see Caban v Vega, 226 AD2d 109, 110-111). Concur — Tom, J.P., Andrias, Saxe, Buckley and Lerner, JJ.