SANTANA v. City of New York, et al., Defendants. (2019)

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered on or about February 21, 2018, which granted defendants-respondents' (collectively MTA) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly invoked the emergency doctrine in finding that no issues of fact exist as to the MTA's negligence given plaintiff's failure in opposition to adduce any evidence tending to show that the nonparty bus driver created the emergency or could have avoided a collision with a vehicle that suddenly moved into the bus's lane of travel by taking some action other than applying his brakes and turning slightly to the right (see Brooks v. New York City Tr. Auth., 19 A.D.3d 162, 798 N.Y.S.2d 381 [1st Dept. 2005] ).  The sudden unexpected swerving of the car into the bus's path required the bus driver to take immediate action, and his reaction of pressing the brake with enough force to prevent a collision with the car and turning the bus slightly to the right was a reasonable response to the emergency, which was not of his own making (see Wu Kai Ming v. Grossman, 133 A.D.3d 742, 743, 19 N.Y.S.3d 334 [2d Dept. 2015] ).

Plaintiff's claim that a triable issue is raised by the fact that the car tried to enter the bus's lane at least once before the accident occurred is unavailing.  The surveillance video shows that the car only drifted slightly towards the right lane and did not enter it until the bus reached the intersection when it suddenly turned right cutting off the bus (see Jones v. New York City Tr. Auth., 162 A.D.3d 476, 78 N.Y.S.3d 347 [1st Dept. 2018];  Orsos v. Hudson Tr. Corp., 111 A.D.3d 561, 975 N.Y.S.2d 655 [1st Dept. 2013] ).

Furthermore, the court providently exercised its discretion in determining that it would consider the emergency doctrine affirmative defense even though it was not pleaded in the MTA's answer.  The facts leading up to accident were within plaintiff's knowledge given the bus driver's deposition testimony that he was “cut off” and the surveillance footage, which was exchanged during discovery (see Mendez v. City of New York, 110 A.D.3d 421, 421–422, 972 N.Y.S.2d 242 [1st Dept. 2013] ).