MARTINEZ v. ACADEMY BUS LLC (2008)

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered October 15, 2007, which, in an action for personal injuries resulting from a motor vehicle accident in which plaintiffs were passengers in defendants' bus, granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

The court improperly granted defendants' motion based on the emergency doctrine, since the record shows that there are triable issues of fact regarding the applicability of the doctrine, including whether the actions of defendant bus driver in attempting to pass two other vehicles in rainy weather were reasonable, and whether the bus he operated first struck the other vehicle and caused it to spin out of control (see Rhodes v. United Parcel Serv., 33 A.D.3d 455, 822 N.Y.S.2d 521 [2006];  Rabassa v. Caldas, 306 A.D.2d 137, 760 N.Y.S.2d 318 [2003] ).   Under the circumstances, it cannot be said as a matter of law that defendant bus driver was faced with an emergency that was not of his own making (see Raposo v. Raposo, 250 A.D.2d 420, 673 N.Y.S.2d 92 [1998] ).