| Khan v Canfora |
| 2009 NY Slip Op 01618 [60 AD3d 635] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 23—Iqbal Khan et al., Respondents, v Jane M.Canfora, Appellant, et al., Defendants. |
—[*1][*2] A. Ali Yusaf, New York, N.Y. (Stephen A. Skor of counsel), for respondents. Epstein & Grammatico, Hauppauge, N.Y. (Helayne D. Rojas of counsel), fordefendants.
In an action, inter alia, to recover damages for personal injuries, the defendant Jane M.Canfora appeals, as limited by her brief, from so much of an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated September 19, 2007, as granted that branch of the plaintiffs'motion which was for summary judgment against her on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiffs' motion which was for summary judgment on the issue of liability againstthe defendant Jane M. Canfora is denied.
This action arises from a three-car collision, in which a car driven by the appellant, Jane M.Canfora, collided with a car operated by the defendant Joshua H. Kaplan. As a result of thiscontact, Canfora's car flipped over and was then propelled into a parked car occupied by theplaintiff Iqbal Khan. The accident occurred on Scholar Lane, a two-way street in the Town ofSmithtown, adjacent to Commack High School.
The plaintiffs moved for summary judgment on the issue of liability against the defendants.In support of the motion, the plaintiffs relied upon the deposition testimony of MichaelGronowski, a witness to the accident. Gronowski testified that he observed Kaplan pull over tothe side of the road adjacent to where Gronowski was seated in a security vehicle. WhenGronowski informed Kaplan that he could not drive onto the school grounds, Kaplan pulled backonto the roadway without looking for oncoming traffic. Immediately thereafter his car collidedwith Canfora's car, which had been proceeding on Scholar Lane.
" '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 [*3]speedy decision without weighing alternative courses of conduct,the actor may not be negligent if the actions taken are reasonable and prudent in the emergencycontext" ' " (Koenig v Lee, 53AD3d 567, 567 [2008], quoting Vitale v Levine, 44 AD3d 935, 936 [2007], quoting Rivera vNew York City Tr. Auth., 77 NY2d 322, 327 [1991]). "[T]he existence of an emergency andthe reasonableness of the response to it is an issue for the trier of fact" (Makagon v Toyota Motor CreditCorp., 23 AD3d 443, 444 [2005]). In addition, a driver with the right of way is notobligated to anticipate that a second motorist will not yield the right of way to him or her (see Koenig v Lee, 53 AD3d 567[2008]).
Here the plaintiffs failed to establish their prima facie entitlement to judgment as a matter oflaw on the issue of liability against Canfora, since there remain triable issues of fact as towhether Canfora was faced with an emergency situation and whether her response to thesituation was reasonable and prudent under the circumstances. Accordingly, that branch of theplaintiffs' motion which was for summary judgment against Canfora on the issue of liabilityshould have been denied (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Tchjevskaia v Chase, 15AD3d 389 [2005]). Skelos, J.P., Santucci, Balkin and Eng, JJ., concur.