| Albinowski v Hoffman |
| 2008 NY Slip Op 08434 [56 AD3d 401] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Amanda Albinowski, Appellant, v Andrew Hoffman et al.,Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Aileen R. Kavanagh of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Baisley, J.), dated July 18, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The evidence submitted by the defendants in support of their motion for summary judgmentestablished that the subject motor vehicle accident occurred when the plaintiff drove her car fromwhere it had been parked, on the right northbound shoulder of North Ocean Avenue in the Townof Brookhaven, across two lanes of northbound traffic and collided with a motor vehicle ownedby the defendant Elizabeth Hoffman and operated by her son, the defendant Andrew Hoffman(hereinafter Hoffman). The evidence submitted by the defendants established, prima facie, thatthe plaintiff was negligent as a matter of law, by violating Vehicle and Traffic Law§§ 1143 and 1160 (e), in failing to yield the right of way to Hoffman, who,according to his deposition testimony, was proceeding straight ahead on North Ocean Avenueand traveling within the posted speed limit. A driver is not obligated to anticipate that a vehicleparked on the shoulder of a road will suddenly and unexpectedly move into a travel lane. Such anevent constitutes a classic emergency situation, thus implicating the "emergency doctrine" (see Gajjar v Shah, 31 AD3d 377,378 [2006]). Hoffman's reaction—staying in his own lane and applying hisbrakes—was reasonable as a matter of law under the [*2]circumstances, which were not of his own making (id.).
The evidence submitted by the plaintiff in opposition to the defendants' motion failed to raisea triable issue of fact (id.). The fact that the plaintiff suffered from amnesia does notcompel a different result. The plaintiff submitted medical evidence establishing that, as a resultof the injuries sustained in the accident, she suffered from retrograde amnesia and had norecollection of the events leading up to the accident. The only passenger in the plaintiff's carlikewise stated in an affidavit that he recalled nothing from the time that he entered the motorvehicle until after the collision. Although a plaintiff who suffers amnesia as a result of adefendant's act is not held to as high a degree of proof in demonstrating his or her right to recoverfor injury as a plaintiff who can describe the events (see Noseworthy v City of New York,298 NY 76 [1948]), he or she is not excused from the "burden of demonstrating the existence ofa triable issue of fact to avoid summary judgment" (Blanco v Oliveri, 304 AD2d 599, 600[2003]). Here, the plaintiff failed to submit sufficient evidence to raise a triable issue of fact.Accordingly, the Supreme Court properly granted the defendants' motion for summary judgmentdismissing the complaint. Skelos, J.P., Ritter, Carni and Dickerson, JJ., concur.