Plaintiff Attorney: Tarasov & Associates, 2566 86th Street, Brooklyn NY Defendants Attorney: Morris, Duffy, Alonso & Faley, 2 Rector St., New York, NY Lifflander & Reich, 425 Madison Ave., New York, NY Fontaine & Schnittman, 15 Metrotech Center, Brooklyn NY
Plaintiff Attorney: Tarasov & Associates, 2566 86th Street, Brooklyn NY
Defendants Attorney: Morris, Duffy, Alonso & Faley, 2 Rector St., New York, NY
Lifflander & Reich, 425 Madison Ave., New York, NY
Fontaine & Schnittman, 15 Metrotech Center, Brooklyn NY
The following papers numbered 1 to 4 read herein:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2
Opposing Affidavits (Affirmations)3
Reply Affidavits (Affirmations)4
Upon the foregoing papers, defendant Darwin M. Taylor (Taylor) moves for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the Complaint as asserted against him in this personal injury action on the ground that the emergency situation which arose presented him with insufficient time to respond. In the alternative, he seeks summary judgment on the issue of whether plaintiff suffered a serious injury under Insurance Law § 5102 (d). As discussed below, defendant's motion for summary judgment on the issue of liability is granted, and the alternative relief requested is deemed academic.
FACTS AND PROCEDURAL HISTORY
The instant action arises from injuries allegedly sustained during an accident on February 9, 2009 which involved four automobiles on a three-lane highway. The alleged accident occurred near Exit 7B of the westbound Belt Parkway at approximately 12:10 a.m. Plaintiff Carlos A. Quinones (Quinones) was driving his Ford Explorer (the Explorer) in the center lane of the Belt Parkway when he noticed that another automobile was stationary and positioned "across the highway" blocking the center lane of traffic. Plaintiff slowed down and was signaling to switch to the adjacent left lane when he was rear-ended by a third vehicle, a Ford Mercury (the Mercury) owned by defendant Hertz Corporation d/b/a Hertz Rent A Car, whose impact forced the Ford into the left lane. The Explorer ended up against the left-side concrete barrier of the westbound part of the highway.
Around the same time, Taylor was driving his Toyota Corolla (the Corolla) in the left lane of the Belt Parkway at a speed of approximately 50 miles per hour. Prior to the accident, he did not notice any vehicles in the right or center lane slowing down. However, he witnessed the Mercury rear-end the Explorer in the center lane when those vehicles were approximately eighty feet in front of him. At that point, Taylor testified that when he observed the collision between the Explorer and Mercury, he lifted his foot off the accelerator and stayed in the left lane. When the Explorer "catapulted" into the left lane in which Taylor was driving, it was one and half to two car-lengths ahead of Taylor. Taylor attempted to swerve to the right and avoid hitting the Explorer, but was only able to make a quarter turn with his steering wheel. The front left fender of Taylor's car made contact with the rear right section of the Explorer. Taylor avers that only seconds passed before his vehicle collided with the Explorer and that he was traveling at between forty to fifty miles per hour at the moment of collision.
On August 17, 2009, plaintiff commenced this action by filing a summons and complaint. As a result of the accident, plaintiff alleges that he sustained injuries to the neck, back, and right shoulder. After the accident, plaintiff could not return to his job as a MTA bus driver until a month later.
THE PARTIES' CONTENTIONS
Taylor argues that the "emergency doctrine" applies to preclude liability because the Explorer's sudden appearance in the left lane, in which Taylor was driving, presented him with a sudden and unexpected circumstance which left him little or no time to respond. Defendant asserts that he took action by braking and attempting to steer into the center lane, away from plaintiff's vehicle. Further, he maintains that he was not negligent and that the sole proximate cause of the accident was the first collision between the Explorer and the Mercury. Finally, defendant contends that plaintiff is not entitled to a determination of "serious injury" because he sustained only a mild degree of permanency as a result of his shoulder injuries from the accident and was found to be normal in all other respects.
In opposition, plaintiff argues that triable issues of fact exist which preclude summary judgment, including whether Taylor could have avoided striking plaintiff's Explorer, given that Taylor saw the first collision (between the Explorer and the Mercury) from a distance of eighty feet and that Taylor was two car-lengths away when he saw plaintiff's vehicle cross into the left lane. Plaintiff also indicates that Taylor did not testify that he stepped on the brake at any point, but merely lifted his foot off the gas pedal. Plaintiff asserts that there is no logical explanation why defendant could not heavily brake, stop, or pass the Explorer on the right. With respect to whether he sustained a serious injury, plaintiff maintains that he met that threshold by submitting his own sworn statement that he has persistent pain and limitation of the neck and back, as well as the supporting reports of his treating and examining physicians, who conclude that plaintiff has a permanent disability causally related to the accident. He further proffers the MRI and other objective tests which, he asserts, indicate range of motion restrictions and subjective complaints sufficient to raise triable issues of fact.
In reply, defendant calculates the approximate time he had to react to the sudden presence of plaintiff's vehicle in the left lane, based on the speed at which the Corolla was traveling and the distance at which plaintiff's vehicle was located when it was initially rear-ended. Additionally, Taylor indicates that plaintiff does not establish any causal connection between the contact of defendants' cars with plaintiff's and any serious injuries alleged to have been sustained. Rather, defendant emphasizes, defendant's doctors concluded that plaintiff's condition was degenerative in nature and found only a mild degree of decreased range of motion in his shoulder.
The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (see Pearson v Dix McBride, LLC, 63 AD3d 895 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 ). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 ). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 ). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 547 ).
Under the common-law emergency doctrine, "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 so reasonably 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 (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 ; Caristo v Sanzone, 96 NY2d 172 ; Vitale v Levine, 44 AD3d 935, 936 ; Bello v Transit Auth. of NY City, 12 AD3d 58, 60 ). When the operator of a motor vehicle is suddenly confronted with an emergency through the negligence of another, and not through his or her own negligence, and is compelled to act instantly, without reflection or deliberation, the operator is not guilty of negligence if he or she makes such a choice as a person of ordinary prudence placed in such a position might make, even though he or she does not make the wisest choice (see Koenig v Lee, 53 AD3d 567 ). Moreover, an operation placed in such a position "is not obligated to exercise his or her best judgment, and an error in judgment is not sufficient to constitute negligence" (Calzareth v Yip, 248 AD2d 661, 662 ). Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, such issues may in appropriate circumstances be determined as a matter of law (Vitale, 44 AD3d at 936 [internal citations and quotation marks omitted]).
Here, Taylor submits sufficient evidence to establish, prima facie, that he was presented with an emergency situation, not of his own making, that required him to "make a speedy decision without weighing alternative courses of conduct" (Ardilla v Cox, 88 AD3d 829, 830  [internal citations and quotation marks omitted]), when the sudden "catapulting" of the Explorer into the left lane left Taylor with mere seconds to respond. Further, the court is satisfied that Taylor acted reasonably, in light of the circumstances, by lifting his foot off the accelerator and swerving to the right to avoid hitting plaintiff's vehicle. Although defendant's Corolla nevertheless struck plaintiff's vehicle, defendant made an effort to slow down and avoid the collision (cf. Quiles v Greene, 291 AD2d 345 ; Woolley v Coppola, 179 AD2d 991 ).
Plaintiff argues that defendant did not step on the brakes when he saw the first collision from a distance of eighty feet and observed the plaintiff's vehicle careen in the left lane from a distance of two car-lengths, but nothing in the record indicates that braking would have prevented the collision (see Cancellaro v Shults, 68 AD3d 1234, 1237 ). Moreover, "[m]ere speculation that [defendant] might have executed some other maneuver to avoid [plaintiff's] entry into his lane of traffic is totally inadequate to raise a question of fact" (White v La France, 203 AD2d 765, 765 ). Such failure does not constitute negligence in the context of the emergency. The emergency situation arose only once the Explorer suddenly entered the lane in which defendant was driving, and defendant was not obligated to anticipate such a situation (see e.g. Gajjar v Shah, 31 AD3d 377, 377—378  [granting defendant summary judgment because defendant was not obligated to anticipate the "classic emergency situation" wherein a vehicle traveling in the opposite direction crosses over into oncoming traffic]). Despite the two car-lengths between plaintiff and defendant, defendant clearly had very little time to react, given the high speed at which the vehicles were traveling.
The court thus finds, as a matter of law, that Taylor's actions were reasonable, given the emergency situation, and that the Complaint as asserted against him should be dismissed. Insofar as defendant's motion seeks summary judgment regarding whether plaintiff sustained a serious injury under the Insurance Law, such relief is denied as academic (see Genovese Drug Stores, Inc. v. William Floyd Plaza, LLC, 63 AD3d 1102 ).
Accordingly, it is
ORDERED that Taylor's motion for summary judgment is granted to the extent of dismissing the Complaint as asserted against him.
The foregoing constitutes the decision, order, and judgment of the court.
J. S. C.