Opinion
CA 02-00054
June 14, 2002.
Appeals from an order of Supreme Court, Onondaga County (Stone, J.), entered August 23, 2001, which, inter alia, denied the motion of defendants Liza M. Moody and Marie A. Morris seeking, inter alia, summary judgment dismissing the complaint in action Nos. 1 and 2 against them.
BROWN MICHAELS, PC, SYRACUSE (HEATHER CLEMENS SPONENBURG OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.
LYNN LAW OFFICES, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT LILLIAN M. GREENWELL.
MACKENZIE HUGHES LLP, SYRACUSE (DAVID M. GARBER OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
ALEXANDER CATALANO, LLP, SYRACUSE (BENJAMIN C. RABIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT KARIANN PRIOLO.
FINKLESTEIN PARTNERS, L.L.P., NEWBURGH (ROBERT A. LEVEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT JOHN CORRADO.
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied the motion of defendants Liza M. Moody and Marie A. Morris seeking summary judgment dismissing the complaint in action Nos. 1 and 2 against them and seeking summary judgment on their cross claims. Those defendants contend that they established as a matter of law both that the emergency doctrine applies with respect to them and that, even if they were negligent, that negligence was not a proximate cause of plaintiffs' injuries in action Nos. 1 and 2. We disagree. With respect to the emergency doctrine, "[w]hether the circumstances constituted a `sudden emergency' and whether [Moody's] conduct was reasonable in light of those circumstances are issues for the trier of fact" ( Lauricella v. McKinney, 284 A.D.2d 939, 939; see Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 326-327, rearg denied 77 N.Y.2d 990; Ferrer v. Harris, 55 N.Y.2d 285, 292-293, mot to amend remittitur granted 56 N.Y.2d 737). In addition, the police report prepared following the accident contains the admission of Moody that "she took the curve of the ramp too fast and the road was slippery[,] causing her to hit the embankment" ( see generally Newman v. Vetrano, 283 A.D.2d 264). That admission raises an issue of fact whether "any emergency situation in which [Moody] found [herself] was caused or contributed to by [her] own negligent conduct," thus negating the applicability of the emergency doctrine ( Rappold v. Snorac, Inc. [appeal No. 7], 289 A.D.2d 1044, 1046; see Caristo v. Sanzone, 96 N.Y.2d 172, 174-175). With respect to proximate cause, those defendants failed to meet their initial burden of establishing that the alleged negligence of Moody in losing control of her vehicle was "so remote in time from plaintiff[s'] injuries `as to preclude recovery as a matter of law'" ( Weary v. Holmes, 249 A.D.2d 957, 958).
The court also properly denied the cross motion of defendant Christina M. Baker seeking summary judgment dismissing the complaint and cross claims in each action against her. Baker met her initial burden of establishing the applicability of the emergency doctrine based on her deposition testimony that she was suddenly confronted by the Moody vehicle upon rounding the curve and could not stop in enough time. We conclude, however, that plaintiff Lillian M. Greenwell raised a triable issue of fact whether the doctrine applies by submitting the affidavit of another motorist stating that he was able to slow down and avoid any collision upon approaching the accident scene ( see Cookingham v. Spakowski, 290 A.D.2d 638; see also Rappold, 289 A.D.2d 1046; Lauricella, 284 A.D.2d 939).