BORST v. SUNNYDALE FARMS INC (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), dated September 29, 1997, which granted the motion of the defendants Sunnydale Farms, Inc., and Anthony DeRosa for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff was allegedly injured when the van he was driving came into contact with a vehicle driven by the defendant Anthony Williams, causing the plaintiff to lose control of his van.   After the impact, the plaintiff's van struck a concrete highway divider, bounced off the divider, and came back across the highway, where it collided with a tractor trailer truck driven by the defendant Anthony DeRosa and owned by the defendant Sunnydale Farms, Inc. (hereinafter Sunnydale).   The Supreme Court granted the motion of Sunnydale and DeRosa for summary judgment.   We affirm.

It is well settled that to grant summary judgment, it must clearly appear that no material triable issue of fact exists (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387;  Rebecchi v. Whitmore, 172 A.D.2d 600, 601, 568 N.Y.S.2d 423).   Further, in order to defeat a motion for summary judgment, the opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form (see, Joseph P. Day Realty Corp. v. Aeroxon Prods., 148 A.D.2d 499, 500, 538 N.Y.S.2d 843).   Mere conclusory statements or unsubstantiated claims in an affidavit in opposition are insufficient to raise a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Rebecchi v. Whitmore, supra, at 601, 568 N.Y.S.2d 423).

 Applying these principles to the case at bar, the record establishes that DeRosa acted reasonably, as a matter of law, given the circumstances.   Under emergency conditions, individuals are required to exercise their best judgment (see, Lackner v. Roth, 166 A.D.2d 686, 687, 561 N.Y.S.2d 279), and the acts in question must be judged in light of the emergency (see, Glick v. City of New York, 191 A.D.2d 677, 678, 595 N.Y.S.2d 560).   The proof demonstrates the existence of emergency circumstances in that after being in a collision with the Williams vehicle, the plaintiff's van unexpectedly ricocheted off of the concrete divider and traveled across the lanes of traffic.   Although DeRosa applied his brake and pulled his truck over to the right shoulder, the plaintiff's van collided with the truck.   The plaintiff's conclusory contention that DeRosa could have taken other measures to avoid the collision is unsupported by the record and, in any event, would demonstrate a mere error in judgment, which, under the emergency circumstances, is insufficient to constitute negligence (see, Greifer v. Schneider, 215 A.D.2d 354, 356, 626 N.Y.S.2d 218;  Denicker v. Denicker, 173 A.D.2d 516, 517, 570 N.Y.S.2d 118).   Therefore, the Supreme Court properly granted the motion for summary judgment.

MEMORANDUM BY THE COURT.