| Quinones v Community Action Commn. to Help the Economy,Inc. |
| 2007 NY Slip Op 10462 [46 AD3d 1326] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Jazmyne Quinones, an Infant, by Rebecca Hall, Her Mother andGuardian, et al., Respondents, v Community Action Commission to Help the Economy, Inc., etal., Appellants, et al., Defendant. |
—[*1] Proner & Proner, New York City (Tobi R. Salottolo of counsel), for Jazmyne Quinones andanother, respondents.
Kane, J. Appeal from an order of the Supreme Court (Meddaugh, J.), entered May 14, 2007in Sullivan County, which denied the motion of defendants Community Action Commission toHelp the Economy, Inc. and Mary E. Mills for summary judgment dismissing the complaintagainst them.
Plaintiffs were passengers in a van driven by defendant Mary E. Mills and owned by Mills'employer, defendant Community Action Commission to Help the Economy, Inc. (hereinafterCACHE). A vehicle driven by defendant Susan S. Dewitt was traveling in the opposite directionon the same road. As Dewitt looked down to retrieve a beverage she dropped, her vehicle veeredinto the lane occupied by CACHE's van. Mills swerved to the left to avoid the collision, but to noavail. Plaintiffs commenced this action to recover for injuries they suffered as a result of theaccident. Mills and CACHE moved for summary judgment dismissing the complaint againstthem. Supreme Court denied the motion, prompting their appeal. We affirm.[*2]
The emergency doctrine provides that when a driver isfaced with sudden and unexpected circumstances leaving little or no time to react, such as avehicle traveling in the opposite direction crossing into the driver's lane, the driver is notnegligent if his or her actions are reasonable and prudent in the context of the emergencysituation (see Burnell v Huneau, 1AD3d 758, 760 [2003]). Summary judgment in an emergency case is only proper wherethere are no factual questions concerning the reasonableness of the driver's actions under thecircumstances or whether the driver could have done something to avoid the collision (see Dumas v Shafer, 4 AD3d 720,722 [2004]; Burnell v Huneau, 1 AD3d at 760; Jennings v Ellsworth, 301 AD2d812, 813 [2003], lv denied 100 NY2d 504 [2003]; Fratangelo v Benson, 294AD2d 880, 881 [2002]; Khaitov v Minevich, 277 AD2d 805, 806 [2000]). Here, Millstestified at her deposition that she was driving just under the speed limit at the time of theaccident and did not have a cellular phone with her that day. She did not apply her brakes, hadonly seconds to react when she first saw Dewitt's vehicle in her lane, and veered to the leftbecause another vehicle had just turned into a driveway immediately on her right. PlaintiffRebecca Hall testified at her deposition that Mills was driving in excess of the speed limit andtalking on a cellular phone at the time of the accident, did not apply her brakes, and veered to theleft instead of the right despite Hall not seeing any vehicles in the driveway to the right. Thedivergent factual situations described by the parties create questions concerning whether Millscontributed to the accident or could have avoided it through evasive action (see Khaitov vMinevich, 277 AD2d at 806-807; King v Washburn, 273 AD2d 725, 726 [2000];Gaeta v Morgan, 178 AD2d 732, 734 [1991]). Thus, Supreme Court properly denied themotion for summary judgment.
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.