Opinion
Index No. 2020-1810
02-21-2023
Mary E. Malandrino, Plaintiff, v. Eshelman Transprtation, Inc. AND SETH G. LAMETTERY, Defendants.
For Plaintiff: Patrick D. Slade, Esq. For Defendant: Thomas P. Armstrong, Esq.
Unpublished Opinion
For Plaintiff: Patrick D. Slade, Esq.
For Defendant: Thomas P. Armstrong, Esq.
THOMAS D. BUCHANAN, J.
Plaintiff has moved for summary judgment on the issue of liability and for dismissal of Defendants' First Affirmative Defense. This case arises from a motor vehicle collision that occurred when a tractor-trailer belonging to defendant Eshelman and operated by defendant Lamettery struck a white pickup truck in the rear, propelling the pickup into the rear of Plaintiff's vehicle, which was stopped while she was waiting to make a left turn. Defendants have opposed the motion.
The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 A.D.3d 1146 [3d Dept 2006]).
Plaintiff points out that, in general, a rear-end collision with a stopped vehicle is prima facie negligence (see e.g. Pampris v. Egnasher, 20 A.D.3d 746 [3d Dept 2005]). However, there are recognized excuses that can overcome that inference, including the "emergency doctrine" which is asserted here by Defendants. The doctrine will apply if the trailing driver can establish that he was confronted with an emergency situation that was not of his own making and that he acted reasonably under the circumstances (see e.g. Williams v. Ithaca Dispatch, Inc., __A.D.3d __, 2022 WL 17835300, 2022 NY Slip Op. 07278 [3d Dept 2022]).
The presence of an emergency situation is ordinarily a question of fact (Id.; see also Rock-Wright v. O'Connor, 172 A.D.3d 1507 [3d Dept 2019]). The deposition testimony of defendant Lamettery includes a version of the facts that could give rise to the emergency doctrine. Lamettery did not specifically testify that his vehicle slid on snow or ice, but he did testify that the weather was cold, and the roads were slippery with tall snowbanks on either side. He further testified that he was driving slowly - perhaps 12 miles per hour - when he observed the driver in front of him apply his brakes. When Lamettery applied his brakes, he began to slide. He turned his steering wheel in an attempt to correct the slide, but still made contact with the vehicle's rear bumper before sliding into a snowbank.
Plaintiff, on the other hand, testified that there was no snow or ice on the road. She also testified to hearing a noise behind her like "when a truck hits their brakes really hard, that ga, ga, ga, ga, ga, ga," a description that could be characterized as the sound of Lamettery's truck skidding on dry pavement. No photographs of the scene have been submitted, and while a police report is referenced, none has been submitted on this motion. Without any corroborating evidence other than these apparently conflicting versions of the collision, a question of fact exists as to the applicability of the emergency doctrine. Resolving that question would require weighing the credibility of the parties, which is inappropriate on a summary judgment motion (Rock-Wright v. O'Connor, 172 A.D.3d at 1509). Plaintiff is not entitled to summary judgment on this record. Whether Defendants are entitled to a jury instruction on the emergency doctrine will abide evaluation of the proof at the trial of this matter.
Plaintiff also moves to dismiss Defendants' First Affirmative Defense, which asserts comparative fault on the part of Plaintiff. Plaintiff asserts that the parties' deposition testimony establishes Lamettery's conduct as the sole proximate cause of the collision. In opposition, Defendants point to Plaintiff's deposition testimony that she did nothing to avoid the collision when she observed the tractor-trailer "fishtailing" in her rear-view mirror. When asked if she took any evasive action, Plaintiff testified, "I couldn't go anywhere" and "I couldn't do anything." While these statements could well be true, they are both conclusory and susceptible to different interpretations. Plaintiff was not asked any specific questions as to what might have prevented her from making her planned left turn or continuing straight ahead in order to avoid being hit. Was she prevented from moving her vehicle by the presence of other traffic? Was she paralyzed by fear? Was she simply indecisive? Plaintiff has not submitted an affidavit that fills that factual gap. While it may be shown at trial why Plaintiff did not take evasive action, the record here does not contain sufficient evidence to absolve Plaintiff.
Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by Plaintiff seeking summary judgment on the issue of liability and seeking dismissal of Defendants' First Affirmative Defense is denied.