VANDERHALL v. MTA BUS COMPANY (2018)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about April 10, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the cross motion denied.

Defendants failed to establish prima facie that they are entitled to summary dismissal of the complaint on the basis of the emergency doctrine (see Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001];  Weston v. Castro, 138 A.D.3d 517, 29 N.Y.S.3d 344 [1st Dept. 2016] ).  Defendants contend that the driver of the bus on which plaintiff was a passenger was not negligent in braking to a sudden, hard stop that allegedly caused plaintiff to be injured, but reacted reasonably to the sudden stop of a car in front of the bus.  However, the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance (Jacobellis v New York State Thruway Auth., 51 A.D.3d 976, 977, 858 N.Y.S.2d 786 [2d Dept. 2008] ).  The bus driver's affidavit demonstrates that he was confronted with a “common traffic occurrence” when the vehicle in front of the bus stopped short (Lowhar–Lewis v. Metropolitan Transp. Auth., 97 A.D.3d 728, 729, 948 N.Y.S.2d 667 [2d Dept. 2012] ).  A factfinder could reasonably conclude that the bus driver was negligent in failing to maintain a safe distance between the bus and the car in front of it (see Vehicle and Traffic Law § 1129[a] ) and that his own conduct caused or contributed to the emergency situation (see Caristo, 96 N.Y.2d at 174, 726 N.Y.S.2d 334, 750 N.E.2d 36).  Contrary to defendants' contention, a violation of Vehicle and Traffic Law § 1129(a) may be found even where there was no collision (Darmento v. Pacific Molasses Co., 81 N.Y.2d 985, 599 N.Y.S.2d 528, 615 N.E.2d 1012 [1993];  see e.g. Lowhar–Lewis, 97 A.D.3d 728, 948 N.Y.S.2d 667).