DANIELLE v. DESHEN LI KUMO SUSHI LOUNGE INC (2026)

Goldberg, Miller & Rubin, P.C., New York (Samantha Pullman of counsel), for appellant.

Brandon J. Broderick, LLC, Rochester (Jason A. Richman of counsel), for Danielle Whitley, respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about June 20, 2025, which denied the motion of defendant Kumo Sushi Lounge II Inc. (KSL) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint as against all defendants.

This personal injury action stems from a motor vehicle collision that occurred on the night of November 20, 2020, when a van owned by defendant Chan Juan Huang and driven by defendant Desheng Li, allegedly while in the course of his employment with KSL, struck then–12 year-old infant plaintiff J.W., a pedestrian.  Li testified that he was driving south in the right lane of the Hutchinson River Parkway in the Bronx at about 45 miles per hour when he first saw J.W. standing 100 feet in front of him in a grassy area on the side of the highway to his right.  Li testified that when the vehicle approached, J.W. made a “running gesture” and began to run towards the vehicle when it was approximately two car lengths away.  Li did not brake or honk his horn, but did take his foot off the gas pedal and was in the process of moving into the left lane to move away from J.W. when J.W. entered the highway, at which point the front right side of the van struck him.  Police conducted sobriety tests at the scene and allowed Li to drive the van from the scene.  He did not receive a ticket, violation, or citation as a result of the collision.  It is undisputed that pedestrians are prohibited from occupying the location where J.W. was traversing (Vehicle and Traffic Law § 1229–a).

Defendants established prima facie that J.W.'s act of running into the highway unlawfully was the sole proximate cause of the collision (see Notaroberta v. Golub, 226 AD3d 1039, 1040 [2d Dept 2024] ).  Li's testimony shows that he was confronted with a sudden and unforeseen situation in which he was forced to make a split second decision and could not “weigh alternative courses of action” such that “he cannot reasonably be held to the same conduct as one who has had full opportunity to reflect” (see Amaro v. City of New York, 40 N.Y.2d 30, 36 [1976] ).  “While it is often a jury question whether a person's reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support 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” (Ward v. Cox, 38 AD3d 313, 314 [1st Dept 2007] [internal citations and quotations omitted] ).

We find such circumstances here.  Defendants have set forth unrebutted testimony that within seconds of observing the child, Li took reasonable affirmative steps to avoid a collision on the busy highway by removing his foot from the accelerator and moving to change lanes.  Plaintiff failed to raise a triable issue of fact in opposition.  While plaintiff argues that Li gave conflicting testimony, was negligent, and contributed to the occurrence of the collision, Li's testimony was in fact consistent.  The record supports the conclusion that Li did not breach his common-law duty to operate the vehicle in a manner that was reasonable and prudent under the circumstances.  The superseding statutory duty, pursuant to Vehicle and Traffic Law § 1146(a), to exercise due care to avoid colliding with a pedestrian on a roadway was met, notwithstanding that the child should not have been there pursuant to Vehicle and Traffic Law § 1229–a.

The Noseworthy doctrine (Noseworthy v. City of New York, 298 N.Y. 76 [1948] ) does not apply here as plaintiff did not make a showing of facts from which Li's negligence can be inferred (see Rugova v. Davis, 112 AD3d 404, 405 [1st Dept 2013] ).

In view of the foregoing and upon a search of the record, we find dismissal of the complaint as against defendants Desheng Li and Chan Juan Huang appropriate.

We have considered plaintiff's remaining arguments and find them unavailing.