MACK v. [And a Third Party Action] (2018)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about November 18, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of defendant/third-party plaintiff Ronald Seabrook for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Seabrook established entitlement to judgment as a matter of law in this action for personal injuries sustained in a motor vehicle accident.  Plaintiff alleges that he was a front-seat passenger in a vehicle owned by third-party defendant Transit Authority and operated by third-party defendant Raul Andrade when it collided with a vehicle owned and operated by Seabrook after Andrade made a U-turn.  The parties' deposition testimony demonstrates that Seabrook may not be held liable for plaintiff's injuries because he was confronted with an emergency situation that was not of his own making when the accident happened (see Caban v. Vega, 226 A.D.2d 109, 111, 640 N.Y.S.2d 58 [1st Dept. 1996] ).  The parties' testimony showed that Andrade violated Vehicle and Traffic Law § 1126(a) by unexpectedly crossing his vehicle over the double yellow line while making a U-turn and that his vehicle was struck by Seabrook's vehicle the moment it entered into the path of oncoming traffic (see Pena v. Slater, 100 A.D.3d 488, 489, 954 N.Y.S.2d 50 [1st Dept. 2012] ).  In view of this testimony, the court properly determined that the emergency doctrine applied and that Seabrook had acted reasonably and prudently under the circumstances (see Dattilo v. Best Transp. Inc., 79 A.D.3d 432, 433, 913 N.Y.S.2d 163 [1st Dept. 2010];  Coleman v. Maclas, 61 A.D.3d 569, 877 N.Y.S.2d 297 [1st Dept. 2009] ).

In opposition, plaintiff failed to raise an issue of fact as to how Seabrook's negligence contributed to the occurrence of the accident (see e.g. Stewart v. Ellison, 28 A.D.3d 252, 253–254, 813 N.Y.S.2d 397 [1st Dept. 2006] ).  Plaintiff's argument that Seabrook contributed to the accident by failing to maintain a proper lookout and not using due care while operating his vehicle is speculative in light of plaintiff's testimony that he did not witness the traffic conditions or Seabrook's vehicle before the accident and the fact that he did not submit an affidavit from someone who did (see Zapata v. Sutton, 84 A.D.3d 521, 922 N.Y.S.2d 400 [1st Dept. 2011] ).