Opinion
21589/14
03-14-2016
Keith Paglen, Plaintiff(s), v. William Shane, Defendant(s).
ATTORNEYS FOR PLAINTIFF(S) SKIP ALAN LEBLANG 325 BROADWAY, SUITE 402 NEW YORK, NY 10007 ATTORNEYS FOR DEFENDANT(S) BREEN & CLANCY 1355 MOTOR PARKWAY, SUITE 2 HAUPPAUGE, NY 11749
ATTORNEYS FOR PLAINTIFF(S) SKIP ALAN LEBLANG 325 BROADWAY, SUITE 402 NEW YORK, NY 10007 ATTORNEYS FOR DEFENDANT(S) BREEN & CLANCY 1355 MOTOR PARKWAY, SUITE 2 HAUPPAUGE, NY 11749 Joseph C. Pastoressa, J.
ORDERED that the motion by the plaintiff for summary judgment in his favor on the issue of liability is granted, and it is further
ORDERED that the motion by the defendant for leave to amend his answer is denied.
This is an action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident that occurred at the intersection of Cambon Avenue and Woodlawn Avenue in Smithtown. The intersection is controlled by stop signs in all directions. The plaintiff's vehicle was stopped on Cambon Avenue behind the stop line and the defendant's vehicle was stopped on the westbound side of Woodlawn Avenue. The defendant attempted to make a left turn onto Cambon Avenue and struck the front driver's side of the plaintiff's vehicle. The plaintiff now moves for summary judgment on the issue of liability and the defendant moves for leave to amend his answer to assert the affirmative defense of the emergency doctrine.
In support of his motion, the plaintiff submits an affidavit, the police accident report, photographs and an affidavit from Lisa Feeney, a non party witness, who was stopped behind the plaintiff's vehicle. Feeney asserts that the plaintiff's vehicle was stopped when the defendant's truck "cut the corner" while making a left turn and struck the plaintiff's vehicle. Based on this evidence, the plaintiff made a prima facie showing of his entitlement to summary judgment (see Murphy v Epstein , 72 AD3d 767).
The defendant seeks to amend his answer to assert the emergency doctrine as an affirmative defense based upon another vehicle that allegedly entered the intersection. 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 negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency" ( Lifson v City of Syracuse , 17 NY3d 492, 497 quoting Caristo v Sanzone , 96 NY2d 172, 174; see Levi v Benyaminova , 128 AD3d 779). An instruction on the emergency doctrine should not be given where the defendant driver should reasonably have anticipated and been prepared to deal with the situation with which he or she was confronted (see Delva v New York City Transit Auth ., 123 AD3d 653; Muye v Liben , 282 AD2d 661).
Here, the defendant submits an affidavit asserting that as he started to make the turn, another vehicle was proceeding eastbound on Woodlawn Avenue and it appeared that the other vehicle would not stop or yield. The defendant claims that he stopped in the intersection, the other vehicle paused and that he was forced to make a sharp left turn in order to avoid being struck by that vehicle. However, the defendant's affidavit concedes that he stopped in the intersection and that the other vehicle paused or stopped prior to his completion of the turn. Thus, there is no evidence that the other vehicle entered the intersection without stopping. The defendant should have anticipated the alleged emergency situation by exercising reasonable care to look out for any other vehicles entering the intersection before executing the turn ( see Vasquez v County of Nassau , 91 AD3d 855). Under these circumstances, the defendant failed to demonstrate the existence of a triable issue of fact or whether the emergency doctrine applied to this case ( see McLaughlin v Lunn , — AD3d — [2d Dept March 2, 2016]).
Accordingly, the motion for summary judgment on the issue of liability is granted and the motion for leave to amend is denied. The parties must proceed with discovery on the issue of damages. DATED: March 14, 2016 HON. JOSEPH C. PASTORESSA, J.S.C.