WELCH v. Chris J. Ferro, appellant. (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Chris J. Ferro appeals from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated January 21, 2016.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

At approximately 2:30 p.m. on November 13, 2012, the plaintiff was riding his bicycle northbound on Commack Road in Deer Park when his bicycle was struck by a taxi owned by the defendant Suffolk Coach, Inc., and operated by the defendant David Marcus, now deceased.  Following the initial impact, the plaintiff was struck by another northbound vehicle owned and operated by the defendant Chris J. Ferro.  The plaintiff commenced this action against Suffolk Coach, Inc., Marcus, and Ferro to recover damages for personal injuries.  After discovery and the filing of the note of issue, Ferro moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that, under the emergency doctrine, he could not be liable for the plaintiff's injuries.  The Supreme Court denied the motion, and Ferro appeals.  By decision and order on application of this Court dated December 29, 2017, Janice Marcus, as administrator of the estate of David Marcus, was substituted for the deceased defendant David Marcus, and the caption was amended accordingly.

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 (see Hurst v. Belomme, 142 A.D.3d 642, 642, 36 N.Y.S.3d 735;  Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526;  Rungoo v. Leary, 110 A.D.3d 781, 782, 972 N.Y.S.2d 672).  There can be more than one proximate cause of an accident (see Hurst v. Belomme, 142 A.D.3d at 642, 36 N.Y.S.3d 735;  Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d 693, 35 N.Y.S.3d 463;  Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604), and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550;  see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280).  Pursuant to the emergency doctrine, a driver faced with a sudden and unexpected circumstance, not of the driver's own making, that leaves little or no time for reflection or causes that driver to be reasonably so disturbed as to compel a quick decision without weighing alternative courses of conduct, may not be negligent if the actions taken are reasonable and prudent in the context of the emergency (see Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36;  Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432;  Mohr v. Carlson, 120 A.D.3d 1206, 1207, 992 N.Y.S.2d 321;  Pavane v. Marte, 109 A.D.3d 970, 971, 971 N.Y.S.2d 562;  Tarnavska v Manhattan & Bronx Surface Tr. Operating Auth., 106 A.D.3d 1079, 1079, 966 N.Y.S.2d 171;  Hendrickson v. Philbor Motors, Inc., 101 A.D.3d 812, 813, 954 N.Y.S.2d 898).  Questions regarding the existence of an emergency and the reasonableness of the response to it will ordinarily present questions to be resolved by the trier of fact (see Pavane v. Marte, 109 A.D.3d at 971, 971 N.Y.S.2d 562;  see also Hendrickson v. Philbor Motors, Inc., 101 A.D.3d at 813, 954 N.Y.S.2d 898;  Williams v. City of New York, 88 A.D.3d 989, 990, 931 N.Y.S.2d 656;  Crawford–Dunk v. MV Transp., Inc., 83 A.D.3d 764, 920 N.Y.S.2d 672;  Bello v. Transit Auth. of N.Y. City, 12 A.D.3d 58, 60, 783 N.Y.S.2d 648;  Davey v. Ohler, 188 A.D.2d 726, 727, 590 N.Y.S.2d 584).

The evidence submitted by Ferro in support of his motion for summary judgment dismissing the complaint insofar as asserted against him established that he was faced with an emergency not of his own making, leaving him with only seconds to react and virtually no opportunity to avoid a collision with the plaintiff (see Kenney v. County of Nassau, 93 A.D.3d 694, 696, 940 N.Y.S.2d 130;  Smit v. Phillips, 74 A.D.3d 782, 783, 901 N.Y.S.2d 705;  see also Wade v. Knight Transp., Inc., 151 A.D.3d 1107, 1110, 58 N.Y.S.3d 458).  However, in opposition, the plaintiff raised triable issues of fact as to whether Ferro's actions were reasonable and prudent under the circumstances, especially given the conflicting statements presented in opposition as to how the subject accident occurred, and whether Ferro contributed to the emergency situation by following the taxi too closely.

Accordingly, we agree with the Supreme Court's determination to deny Ferro's motion for summary judgment dismissing the complaint insofar as asserted against him.

DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.