Kweh v. Edmunds

• Decision Date: 16 March 2012
• Citation: 2012 N.Y. Slip Op. 01997,93 A.D.3d 1247,940 N.Y.S.2d 436
• Parties: Ophelia KWEH, as Guardian of the Person and Property of John Kweh, and Ophelia Kweh, Plaintiff–Respondent, v. Christopher C. EDMUNDS, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 1.).Ophelia Kweh, as Administratrix of The Estate of Sampson Kweh, Deceased, Plaintiff–Respondent, v. Christopher C. Edmunds, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 2.).Philip Kweh, Plaintiff–Respondent, v. Christopher C. Edmunds, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 3.).Kadra Dayow, as Administratrix of The Estate of Mohamed Dayow, Deceased, Plaintiff–Respondent, v. Ophelia Kweh, as Administratrix of The Estate of Juty Kweh, Deceased, Defendant,Patrick D. Sampson And Christopher C. Edmunds, Defendants–Appellants. (Action No. 4.)Kadra Dayow, as Administratrix of The Estate of Mohamed Dayow, Deceased, Plaintiff–Respondent, v. Skinner Sales, Inc., Defendant–Appellant. (Action No. 5.).
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01997

93 A.D.3d 1247

940 N.Y.S.2d 436

Ophelia KWEH, as Guardian of the Person and Property of John Kweh, and Ophelia Kweh, Plaintiff–Respondent,

v.Christopher C. EDMUNDS, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 1.).Ophelia Kweh, as Administratrix of The Estate of Sampson Kweh, Deceased, Plaintiff–Respondent,

v.Christopher C. Edmunds, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 2.).Philip Kweh, Plaintiff–Respondent,

v.Christopher C. Edmunds, Patrick D. Sampson, Skinner Sales, Inc., Defendants–Appellants, et al., Defendant. (Action No. 3.).Kadra Dayow, as Administratrix of The Estate of Mohamed Dayow, Deceased, Plaintiff–Respondent,

v.Ophelia Kweh, as Administratrix of The Estate of Juty Kweh, Deceased, Defendant,Patrick D. Sampson And Christopher C. Edmunds, Defendants–Appellants. (Action No. 4.)Kadra Dayow, as Administratrix of The Estate of Mohamed Dayow, Deceased, Plaintiff–Respondent,

v.Skinner Sales, Inc., Defendant–Appellant. (Action No. 5.).

Supreme Court, Appellate Division, Fourth Department, New York.

March 16, 2012.

Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. Dibenedetto of Counsel), for Defendants–Appellants.

Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, LLP, Utica (Richard Pertz of Counsel), The Golden Law Firm, and Peter M. Hobaica LLC, for Plaintiffs–Respondents.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiffs commenced these negligence and wrongful death actions stemming from a motor vehicle accident that occurred when a vehicle operated by decedent Juty Kweh (Kweh) collided with a vehicle operated by defendant Christopher C. Edmunds. The collision occurred when Edmunds and Kweh were driving in opposite directions on a two-lane highway, and the vehicle driven by Kweh entered Edmunds's lane of travel. Supreme Court properly denied the motion of Edmunds, defendant Patrick D. Sampson, and defendant Skinner Sales, Inc. (hereafter, defendants) for summary judgment seeking dismissal of the complaints and all cross claims against them. In order to establish their entitlement to summary judgment based on the emergency doctrine in this crossover case, defendants were required to establish “both that [Kweh's] vehicle ‘suddenly entered the lane where [Edmunds] was operating [his vehicle] in a lawful and prudent manner and that there was nothing [Edmunds] could have done to avoid the collision’ ” ( Fratangelo v. Benson, 294 A.D.2d 880, 881, 741 N.Y.S.2d 798, quoting Pilarski v. Consolidated Rail Corp., 269 A.D.2d 821, 822, 702 N.Y.S.2d 485; see Rost v. Stolzman, 81 A.D.3d 1401, 1402, 917 N.Y.S.2d 470). Defendants failed to meet that burden inasmuch as the proof submitted by them in...