| Vitale v Levine |
| 2007 NY Slip Op 08065 [44 AD3d 935] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Johnny Vitale, Appellant, et al., Plaintiff, v DeborahLevine et al., Respondents. |
—[*1] Russo & Apoznanski, Westbury, N.Y. (Mark Apoznanski of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiff Johnny Vitale appeals,as limited by his brief, from so much of an order of the Supreme Court, Nassau County(LaMarca, J.), dated July 9, 2006, as granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted by him.
Ordered that the order is affirmed insofar as appealed from, with costs.
Under the emergency doctrine, "when an actor is faced with a sudden and unexpectedcircumstance which leaves little or no time for thought, deliberation or consideration, or causesthe actor to be reasonably so disturbed that the actor must make a speedy decision withoutweighing alternative courses of conduct, the actor may not be negligent if the actions taken arereasonable and prudent in the emergency context" (Rivera v New York City Tr. Auth., 77NY2d 322, 327 [1991]; see Caristo v Sanzone, 96 NY2d 172, 174 [2001]; Bello v Transit Auth. of N.Y. City, 12AD3d 58, 60 [2004]). Although the existence of an emergency and the reasonableness of theresponse to it generally present issues of fact (see Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444[2005]), those issues "may in appropriate circumstances be determined as a matter of law"(Bello v Transit Auth. of N.Y. City, 12 AD3d at 60; see Huggins v Figueroa, 305AD2d 460, 462 [2003]).
As correctly determined by the Supreme Court, the evidence submitted in support of [*2]the defendants' motion for summary judgment was sufficient toestablish that the defendant driver was faced with a sudden and unforeseen occurrence not of herown making (see Richards v Miller,21 AD3d 1023, 1024 [2005]; Frank v Lufsey, 243 AD2d 538 [1997]), when theplaintiff Johnny Vitale (hereinafter the plaintiff) lost control of his motorcycle, was ejected fromit, and slid across the roadway into the defendant driver's path, and that she acted reasonably andprudently under the circumstances. All of these facts leading to the accident amounted to anemergency situation, and were well known to the parties, obviating the necessity of pleadingthese facts as an affirmative defense (see CPLR 3018 [b]; Edwards v New York City Tr. Auth.,37 AD3d 157, 158 [2007]; Bello v Transit Auth. of N.Y. City, 12 AD3d at 61). Inopposition, the plaintiff's speculative and conclusory assertions failed to raise a triable issue offact (see Alvarez v Prospect Hosp., 68 NY2d 320, 326-327 [1986]; Huggins vFigueroa, 305 AD2d at 462). Miller, J.P., Goldstein, Skelos and Balkin, JJ., concur.