Opinion
8549/05.
Decided May 5, 2009.
The plaintiff was represented by: Neil Kalra, PC, Forest Hills, NY.
The defendant was represented by: Richard T. Lau Assoc., Jericho, NY.
Defendant Antonio A. Rivera (Rivera) moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint of plaintiffs Michael Brathwaite (Brathwaite), Patricia Brathwaite and Cynthia Moore, and plaintiffs cross-move for an order granting summary judgment in their favor.
The instant motion and cross motion arise out of a lawsuit commenced by the filing of a Summons and Verified Complaint dated March 17, 2005, where plaintiffs Brathwaite and Moore seek to recover damages for personal injuries sustained as a result of a motor vehicle accident which occurred between 3:00 A.M. and 4:00 A.M. on August 2, 2002, on the eastbound lanes of the Belt Parkway at or near its intersection with Bay 8th Street in Brooklyn. Plaintiff Patricia Brathwaite asserts a derivative cause of action.
According to Brathwaite's deposition testimony, the subject accident took place when the vehicle which he was driving and in which Moore was a passenger, while traveling eastbound on the Belt Parkway, was struck in the rear by a vehicle being driven by "John Doe", who fled the scene of the accident after the initial impact. As a result of the impact, Brathwaite's vehicle was caused to spin around and come to a stop perpendicular to the direction of the flow of traffic. Brathwaite testified that he was traveling at approximately 45 to 50 miles per hour at the time of the first collision. He and Moore remained in the vehicle for a minute or two before exiting, and stood a short distance away.
Brathwaite testified that the vehicle he was driving, a 1998 Lincoln Town Car, was a livery vehicle which he owned, and that the accident occurred in the course of business. Moore was a paid passenger at the time.
Brathwaite testified that the front of the vehicle was facing south when it came to a rest.
Brathwaite testified that after approximately three or four minutes, he returned to the vehicle with the intention of turning the headlights off. As he was reaching inside, and before he could do so, Brathwaite's vehicle was broad-sided by the vehicle being operated by Rivera.
In his motion, Rivera contends that the evidence does not support a finding on negligence on his part. At his deposition, Rivera testified that he was proceeding at approximately 45 to 50 miles per hour and was coming around a curve while traveling in the middle lane on the Belt Parkway, when, from about 20 feet away, he first observed the Brathwaite vehicle. He also observed the headlights of another vehicle traveling alongside him, in the right lane. He testified that he was unable to move to the right lane, and after hitting the brakes "all the way down," collided with the Brathwaite vehicle.
Contending that the uncontradicted testimony demonstrates that he was confronted by an emergency situation which left no opportunity for him to take evasive action, Rivera, in support of his motion, invokes the "emergency doctrine."
In their cross motion, plaintiffs analogize the occurrence to a rear-end collision, arguing that nothing obstructed his view of the roadway or what there was to be seen in front of him, and "he did not encounter anything out of the ordinary." Urging the court to accept the analogy, and citing the general rule in New York that a rear-end collision creates a prima facie case of liability with respect to the operator of the moving vehicle unless the latter can come forth with an adequate, non-negligent explanation for the accident, plaintiffs contend that the instant accident occurred because the defendant did not operate his vehicle appropriately under the circumstances. They further dispute defendant's reliance on the emergency doctrine, seeking denial of defendant's motion and judgment in their favor on liability.
At her deposition, Moore testified that she did not observe either of the two collisions.
In reply, Rivera argues that there is no evidence to indicate that Brathwaite could not have moved his vehicle, rather than leaving it in a position where it posed a hazard to oncoming traffic. He further disputes plaintiffs' attempt to characterize the occurrence to a rear-end collision, and rejects plaintiffs' argument that the defendant's views were unobstructed are conclusory and speculative.
DISCUSSION
The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Garnham Han Real Estate Brokers v Oppenheimer, 148 AD2d 493; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion ( Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966).
The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be found negligent if the actions taken are reasonable and prudent in the emergency context, since the actor cannot be expected to adhere to the same accuracy of judgment as someone who has had the full opportunity to reflect ( see Caristo v Sanzone, 96 NY2d 172, 174; Rivera v New York City Tr. Auth., 77 NY2d 322, 327). Thus, when a driver is confronted with an emergency situation, he or she will not be held to the same standard of care that would be applied to a driver in a non-emergency situation. Specifically, if a driver is confronted with an emergency not of his or her own making and reacts as a reasonable person would under similar circumstances, no negligence will be found ( see Pettica v Williams, 223 AD2d 987).
Traditionally, whether a party has acted prudently in a given situation is a question for the trier of fact to resolve ( see Smith v Brennan, 245 AD2d 596, 597; Davis v Pimm, 228 AD2d at 887). Even where an emergency is found to exist, that does not automatically absolve one from liability. A driver confronted with an emergency situation may still be found to be at fault for the resulting accident when his or her reaction is found to be unreasonable ( see Ferrer v Harris, 55 NY2d 285, 293; Hentschel v Campbell Carpet Servs., 256 AD2d 500; Davis v Pimm, 228 AD2d 885, 887, lv. denied 88 NY2d 815). Similarly, a situation in which the emergency is one of the defendant's own making, or caused by the defendants own actions, will not be held to be a qualifying emergency for purposes of invoking the emergency doctrine. This may occur, for example, where the defendant fails to be aware of potential hazards presented by traffic conditions, including stoppages caused by accidents up ahead ( see Cascio v Metz, 305 AD2d 354, 355) or, where there is evidence showing that the defendant failed to maintain a safe distance, defendant simply strikes a completely-stopped vehicle in the rear ( see Campanella v Moore, 266 AD2d 423, 424).
However, although the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact, they may, in appropriate circumstances, be determined as a matter of law ( see Cathey v Gartner , 15 AD3d 435 ; Tseytlina v NY City Transit Auth., 12 AD3d 590). Here, defendant has made a prima facie showing of entitlement to judgment, since there is competent evidence demonstrating that a number of factors, including darkness, the presence of a vehicle in the next lane which prevented defendant from changing lanes, plaintiff's possible failure to activate his emergency flashers, and a curve in the highway that prevented defendant from perceiving plaintiff's stopped vehicle, combined to give rise to an emergency situation that was not of defendant's own making ( see Holtermann v Cochetti, 295 AD2d 680, 681). By contrast, plaintiffs fail to make a prima facie showing of entitlement to judgment on their cross motion, or to raise an issue of fact in opposition to defendant's motion. Although they present Brathwaite's testimony to challenge that of defendant with respect to the curve in the road and his limited sight line, they do not controvert defendant's testimony that he was traveling at a reasonable rate of speed under the circumstances and lacked any means of avoiding the Brathwaite vehicle, with anything more than speculative arguments ( see Patella v Yonkers Contracting Corp., 262 AD2d 471, 472). Moreover, in weighing the applicability of the emergency doctrine, the court notes that Brathwaite, although testifying that his vehicle remained in the middle of the roadway of a major thoroughfare for several minutes after the first collision, offered no testimony to show that it was disabled to the point where it could not be moved to the side of the roadway, or, as a professional driver, that he equipped his vehicle with flares whose use he employed, or that he employed any other means of alerting oncoming traffic to the hazard posed by his stationary vehicle. Plaintiffs' reliance on Bibbo v Taylor ( 89 AD2d 573), a case commenced by a passenger who was seated next to the defendant-driver when the accident occurred and where there was a specific finding on the evidence that defendant's conduct, by driving at an excessive rate of speed at night on an unlit road, fell below any permissible standard of due care, is thus misplaced.
Plaintiffs' unsupported attempt to analogize the instant factual situation to a rear-end collision which would establish a prima facie case of negligence on the part of defendant barring a non-negligent explanation, is unconvincing. Moreover, none of the cases relied upon by plaintiffs on this issue are applicable to the facts presented herein. For example, in Marsella v Sound Distrib. Corp. ( 248 AD2d 683), plaintiff's summary judgment motion was denied where the plaintiff's vehicle struck a parked truck owned by the defendant. The explanation proffered by the plaintiff, that the sun was shining into her eyes, was rejected and found to be insufficient to raise a triable issue of fact as to the negligence of the defendant's employee in parking the truck at the location where the accident occurred. Rather, as found by the court, the proximate cause of the accident was the plaintiff's failure to control her vehicle and to see that which, under the facts and circumstances, she should have seen by the proper use of her senses. By significant contrast here, the Brathwaite vehicle was positioned in the middle of a highway at night, and was not parked within the meaning of the Vehicle and Traffic Law § 129. Moreover, plaintiffs erroneously state, as an underlying fact in Marsella, that the plaintiff there was traversing a blind curve. No such fact is set forth by the Appellate Division in its order reversing that of the motion court and dismissing the complaint.
der VTL 129, "Park or parking [m]eans the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers."
Similarly, the facts in Santanastasio v JohnDoe ( 301 AD2d 511) involved a rear-end collision with a truck that was legally parked in the service road to the parkway, and is thus inapplicable. Bucceri v Frazer ( 297 AD2d 304) involved a rear-end collision on an entrance ramp, and once again, plaintiffs erroneously state in their papers that the facts therein involved a blind curve, where no such facts are set forth.
In view of the foregoing, the court finds that the evidence permits a finding that defendant has sustained his burden of demonstrating that an emergency not of his own making existed, and that he acted reasonably under the circumstances. Accordingly, the court grants defendant's motion for summary judgment and dismisses the complaint. Plaintiffs' cross motion is denied.
This constitutes the decision, judgment and order of the court.