Opinion
2013-11-8
Regina M. SHANAHAN, as Executrix of the Estate of Daniel B. Shanahan, Jr., Deceased, Plaintiff–Respondent, v. John A. MACKOWIAK and Valerie Mackowiak, Defendants–Appellants.
Goldberg Segalla LLP, Buffalo (James M. Paulino, II, of Counsel), for Defendants–Appellants. Robert H. Perk, Buffalo, for Plaintiff–Respondent.
Goldberg Segalla LLP, Buffalo (James M. Paulino, II, of Counsel), for Defendants–Appellants. Robert H. Perk, Buffalo, for Plaintiff–Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this wrongful death action as executrix of the estate of Daniel B. Shanahan, Jr. (decedent), seeking damages for fatal injuries sustained by decedent in a motor vehicle accident. The accident occurred when the vehicle operated by decedent crossed over into the opposite lane of traffic and collided with a vehicle operated by John A. Mackowiak (defendant). Defendants moved for summary judgment dismissing the complaint, contending that decedent's conduct in crossing into defendant's lane of travel was the sole proximate cause of the accident and that defendant did not have time to react to avoid the collision. We agree with defendants that Supreme Court erred in denying their motion.
Under the emergency doctrine, “ ‘when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency’ ” ( Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36;see Lifson v. City of Syracuse, 17 N.Y.3d 492, 497, 934 N.Y.S.2d 38, 958 N.E.2d 72;Stewart v. Kier, 100 A.D.3d 1389, 1389–1390, 953 N.Y.S.2d 747). It is well established that a driver is “not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel” ( Cardot v. Genova, 280 A.D.2d 983, 983, 720 N.Y.S.2d 698;see Wasson v. Szafarski, 6 A.D.3d 1182, 1183, 776 N.Y.S.2d 423).
Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent's vehicle unexpectedly crossed over into defendant's lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision ( see generally Kweh v. Edmunds, 93 A.D.3d 1247, 1248, 940 N.Y.S.2d 436;Clough v. Szymanski, 26 A.D.3d 894, 895, 809 N.Y.S.2d 707;Pilarski v. Consolidated Rail Corp., 269 A.D.2d 821, 822, 702 N.Y.S.2d 485). Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver's] response was reasonable” ( Schlanger v. Doe, 53 A.D.3d 827, 828, 861 N.Y.S.2d 499;see Stewart, 100 A.D.3d at 1390, 953 N.Y.S.2d 747), we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant's] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact” (Patterson v. Central N.Y. Regional Transp. Auth. [CNYRTA], 94 A.D.3d 1565, 1566, 943 N.Y.S.2d 369,lv. denied19 N.Y.3d 815, 955 N.Y.S.2d 554, 979 N.E.2d 815 [internal quotation marks omitted] ). The speculative assertion of plaintiff's expert that decedent's vehicle was in defendant's lane of travel for a sufficient period of time for defendant to have avoided the collision is insufficient to raise an issue of fact to defeat the motion ( see Hubbard v. County of Madison, 93 A.D.3d 939, 942, 939 N.Y.S.2d 619,lv. denied19 N.Y.3d 805, 2012 WL 2036586;Wasson, 6 A.D.3d at 1183, 776 N.Y.S.2d 423).
We reject plaintiff's contention that she was entitled to a less stringent burden of proof in establishing the existence of an issue of fact, pursuant to Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744. Plaintiff “has the burden of raising a triable issue of fact ... before the Noseworthy rule may be applied, and she failed to meet that burden” ( Humphrey v. Ka Choya's, Inc., 16 A.D.3d 1029, 1030, 793 N.Y.S.2d 302;see Smith v. Stark, 67 N.Y.2d 693, 694–695, 499 N.Y.S.2d 922, 490 N.E.2d 841).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.