Nina Malisheva, appellant, v. LLC (2026)

Argued—September 12, 2025

DECISION & ORDER

C/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Francois Rivera, J.), dated November 19, 2020.  The order, insofar as appealed from, granted that branch of the motion of the defendant Circle of Friends Home Care, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On August 19, 2017, the plaintiff allegedly was injured while she was a passenger in a vehicle owned by the defendant Circle of Friends Home Care, LLC (hereinafter Circle of Friends), and operated by the defendant Roman “Doe” (hereinafter Roman).  In June 2018, the plaintiff commenced this action against the defendants to recover damages for personal injuries.

“ ‘A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident’ ” (Hernandez v. Flores, 226 AD3d 982, 983, quoting Boulos v. Lerner–Harrington, 124 AD3d 709, 709).  “Pursuant to the emergency doctrine, ‘when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context’ ” (Mulombo v. City of New York, 239 AD3d 665, 666, quoting Anderson v. Metropolitan Transp.  Auth., 208 AD3d 742, 743;  see Hernandez v. Flores, 226 AD3d at 983).  “Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues ‘may in appropriate circumstances be determined as a matter of law’ ” (Hernandez v. Flores, 226 AD3d at 983 [citation omitted], quoting Vitale v. Levine, 44 AD3d 935, 936;  see Kinard v. New York City Tr. Auth., 233 AD3d 665, 666;  Bernot v. Reid, 227 AD3d 1043, 1045).

Here, Circle of Friends established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence demonstrating that Roman's act of braking to avoid striking a child who had suddenly run directly into the path of the vehicle was reasonable and prudent in light of the emergency presented, which was not of Roman's own making.

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's affidavit submitted in opposition to the motion contradicted her earlier deposition testimony and raised only a feigned issue of fact (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049;  Lylan Pham v. Lee, 219 AD3d 601, 602).

The plaintiff's remaining contentions are improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly granted that branch of Circle of Friends's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

CONNOLLY, J.P., WOOTEN, TAYLOR and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court