CAMAS v. Daryoush Larizadeh, appellant-respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Yolanda CAMAS, respondent-appellant, v. Fermin CASTELLANOS, defendant, Daryoush Larizadeh, appellant-respondent.

Decided: April 26, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Smetana & Schwartz, Melville, N.Y. (Patrick B. McKeown of counsel), for appellant-respondent. Robert L. Knight, Port Washington, N.Y., for respondent-appellant.

In an action to recover damages for personal injuries, (1) the defendant Daryoush Larizadeh appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated April 28, 1998, as, in effect, denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, and (2) the plaintiff cross-appeals, as limited by her brief, from so much of the order as denied that branch of her cross motion which was to compel discovery of a statement made by the defendant Daryoush Larizadeh to his insurance company after the accident.

ORDERED that the order is reversed insofar as appealed from by the defendant Daryoush Larizadeh, and his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted;  and it is further,

ORDERED that the cross appeal is dismissed as academic in light of the determination of the appeal;  and it is further,

ORDERED that the defendant Daryoush Larizadeh is awarded one bill of costs.

The plaintiff commenced this action to recover damages she allegedly sustained when the car in which she was a passenger crossed over into a lane of oncoming traffic and was struck by a car operated by the defendant Daryoush Larizadeh.

The Supreme Court improperly denied Larizadeh's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him based upon the emergency doctrine.   Larizadeh was faced with an emergency situation when the car in which the plaintiff was a passenger crossed over into his lane of traffic (see, Greifer v. Schneider, 215 A.D.2d 354, 356, 626 N.Y.S.2d 218;  Fermin v. Graziosi, 240 A.D.2d 365, 658 N.Y.S.2d 404;  Glick v. City of New York, 191 A.D.2d 677, 595 N.Y.S.2d 560).   The defendant Fermin Castellanos, the driver of the vehicle in which the plaintiff was a passenger, testified that “[e]verything happened in an instant”, and that his vehicle was stopped for “a second” or “[j]ust seconds” before it was hit by Larizadeh's vehicle.   The actions of a driver presented with such a situation must be judged in this context (see, Greifer v. Schneider, supra;  Fermin v. Graziosi, supra).   Larizadeh's response to the emergency, hitting the brakes and turning his car to the right, was reasonable.   Therefore, Larizadeh was entitled to summary judgment dismissing the complaint and cross claims insofar as asserted against him (see, Velez v. Diaz, 227 A.D.2d 615, 616, 643 N.Y.S.2d 614;  Williams v. Econ, 221 A.D.2d 429, 430, 633 N.Y.S.2d 392;  Greifer v. Schneider, supra, at 356, 626 N.Y.S.2d 218;  Moller v. Lieber, 156 A.D.2d 434, 548 N.Y.S.2d 552;  see also, Mangano v. New York City Hous. Auth., 218 A.D.2d 787, 631 N.Y.S.2d 54).

In light of our determination on the appeal, the cross appeal is dismissed as academic.

MEMORANDUM BY THE COURT.

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