CHEUNG v. DOMINICAN CONVENT OF OUR LADY OF THE ROSARY (2005)

In a consolidated action and a related action to recover damages for personal injuries, the defendant Dominican Convent of Our Lady of the Rosary and the defendant Marianne Morelli in the consolidated action appeal, and the plaintiff Marianne Morelli in Action No. 2, separately appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated July 19, 2004, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in the consolidated action.

ORDERED that the appeal by Marianne Morelli, as the plaintiff in Action No. 2, is dismissed, as, in that capacity, she is not aggrieved by the order appealed from (see CPLR 5511);  and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendants Dominican Convent of Our Lady of the Rosary and Marianne Morelli in the consolidated action, the motion is granted, the complaint and all cross claims in the consolidated action are dismissed insofar as asserted against those appellants, and that action is severed against the remaining defendants;  and it is further,

ORDERED that one bill of costs is awarded to the defendants Dominican Convent of Our Lady of the Rosary and Marianne Morelli in the consolidated action payable by the respondents in that action.

 The emergency doctrine applies when a party is confronted with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration (see Calzareth v. Yip, 248 A.D.2d 661, 670 N.Y.S.2d 583).   Under the emergency doctrine, a driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic (see Huggins v. Figueroa, 305 A.D.2d 460, 762 N.Y.S.2d 404;  Bentley v. Moore, 251 A.D.2d 612, 675 N.Y.S.2d 108).

 The defendants Dominican Convent of Our Lady of the Rosary (hereinafter the convent) and Marianne Morelli in the consolidated action made a prima facie showing of entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against them, with proof that the vehicle operated by the codefendant Wei Guan Guang in that action suddenly crossed over a grass median into oncoming traffic and struck the vehicle owned by the convent and operated by Morelli (see Lee v. Ratz, 19 A.D.3d 552, 798 N.Y.S.2d 80).   The speculation that Morelli somehow contributed to the accident or should have taken some action to prevent it was insufficient to defeat the motion for summary judgment (see Boos v. Bedrock Materials, 16 A.D.3d 447, 791 N.Y.S.2d 621).