SIMMONS KINDRON v. 1218770 ONTARIO INC (2012)

 Plaintiff commenced this action seeking damages for injuries she sustained when the vehicle she was driving was rear-ended by a truck owned by 1218770 Ontario Inc., doing business as Fyke Trading Co., and driven by Victor J. Nickerson (collectively, defendants).   We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint against them based on the emergency doctrine.   That doctrine “ ‘recognizes that 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’ ” (Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36, quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432, rearg. denied 77 N.Y.2d 990, 571 N.Y.S.2d 916, 575 N.E.2d 402).  “[I]t generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver's] response thereto was reasonable” (Schlanger v. Doe, 53 A.D.3d 827, 828, 861 N.Y.S.2d 499;  see Heye v. Smith, 30 A.D.3d 991, 992, 817 N.Y.S.2d 471;   Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430).   Nevertheless, summary judgment is appropriate “ ‘when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue’ ” (McGraw v. Glowacki, 303 A.D.2d 968, 969, 758 N.Y.S.2d 224;  see Ward v. Cox, 38 A.D.3d 313, 314, 831 N.Y.S.2d 406).

 Defendants met their initial burden of establishing that Nickerson was confronted with an emergency situation when plaintiff suddenly entered his lane and that there was nothing he could have done to avoid the collision (see Hotkins v. New York City Tr. Auth., 7 A.D.3d 474, 475, 777 N.Y.S.2d 469;  Lucksinger v. M.T. Unloading Servs., 280 A.D.2d 741, 741–742, 720 N.Y.S.2d 272;  cf. Fratangelo v. Benson, 294 A.D.2d 880, 881, 741 N.Y.S.2d 798). In support of the motion, defendants submitted the deposition testimony of plaintiff and Nickerson.   Plaintiff, who was traveling in the left lane of traffic, admitted that she moved her vehicle to the right lane when traffic in front of her slowed down, but that she failed to observe Nickerson's truck in the right lane.   Nickerson testified that he observed plaintiff brake and drive directly in front of his truck.   He further testified that he had no time to apply his brakes or to take any evasive action.   Indeed, he was moving his foot to the brake pedal when the impact occurred.

 In opposition to the motion, plaintiff failed to raise a triable issue of fact whether Nickerson “was negligent in failing to take evasive action to avoid the collision” (Lupowitz v. Fogarty, 295 A.D.2d 576, 576, 744 N.Y.S.2d 480).   Plaintiff submitted the deposition testimony of another defendant driver who was behind the truck and who testified that Nickerson may have been traveling 60 to 65 miles per hour immediately before the accident.   She failed to demonstrate, however, that Nickerson could have avoided the collision regardless of his speed (see Lucksinger, 280 A.D.2d at 742, 720 N.Y.S.2d 272).   Further, plaintiff's expert affidavit was insufficient to raise a triable issue of fact with respect to the reasonableness of Nickerson's actions (see Wasson v. Szafarski, 6 A.D.3d 1182, 1183, 776 N.Y.S.2d 423).

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 against defendants 1218770 Ontario Inc., doing business as Fyke Trading Co., and Victor J. Nickerson is dismissed.

MEMORANDUM: