        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1020
CA 11-00312
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


BEATRICE S. PHELPS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MELISSA A. RANGER, CHRISTOPHER M. DWYER,
JAMIE C. COGAN, STEPHANIE M. COGAN,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


MITCHELL GORIS & STOKES, LLC, CAZENOVIA (PATRICK J. O’SULLIVAN OF
COUNSEL), FOR DEFENDANT-APPELLANT MELISSA A. RANGER.

MELVIN & MELVIN, PLLC, SYRACUSE (MICHAEL R. VACCARO OF COUNSEL), FOR
DEFENDANT-APPELLANT CHRISTOPHER M. DWYER.

O’SHEA MCDONALD & STEVENS, LLP, ROME (TIMOTHY BRIAN O’SHEA OF
COUNSEL), FOR DEFENDANTS-APPELLANTS JAMIE C. COGAN AND STEPHANIE M.
COGAN.

ROBERT E. LAHM, PLLC, SYRACUSE (ROBERT E. LAHM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Oneida County
(Bernadette T. Clark, J.), entered May 26, 2010 in a personal injury
action. The order denied the motion of defendants Jamie C. Cogan and
Stephanie M. Cogan and cross motions of Melissa A. Ranger and
Christopher M. Dwyer for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
damages for injuries she allegedly sustained when the vehicle in which
she was a passenger, driven by defendant Melissa A. Ranger, collided
head-on with a vehicle driven by defendant Christopher M. Dwyer. The
vehicle driven by Dwyer was then struck by a vehicle driven by
defendant Jamie C. Cogan and owned by defendant Stephanie M. Cogan.
Supreme Court properly denied the motion of the Cogan defendants and
the cross motions of Dwyer and Ranger seeking summary judgment
dismissing the complaint and any cross claims against them on the
ground that they were confronted with an emergency situation, i.e.,
blowing snow that produced white-out conditions. Even assuming,
arguendo, that the defendant drivers were confronted with an emergency
situation, we conclude that “there are issues of fact with respect to
                                 -2-                          1020
                                                         CA 11-00312

the appropriateness of the conduct of the [defendant drivers] in light
of all of the circumstances, including the severely inclement weather,
and thus summary judgment is not appropriate” (Sossin v Lewis, 9 AD3d
849, 851, amended on rearg on other grounds 11 AD3d 1045). Contrary
to the contention of Dwyer, we further conclude that there are issues
of fact whether the vehicle driven by Ranger crossed into his lane
and, if so, whether he acted reasonably under the circumstances (see
Rowen v Harris, 45 AD3d 1420). Finally, there is a triable issue of
fact whether there was only a single impact between the vehicle driven
by Dwyer and that driven by Ranger, or whether there was a second
impact to the vehicle driven by Ranger when the vehicle driven by
Cogan struck Dwyer’s vehicle and pushed it into the vehicle driven by
Ranger (see generally Bauman v Benlivi, 291 AD2d 470).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
