| Cancellaro v Shults |
| 2009 NY Slip Op 08936 [68 AD3d 1234] |
| December 3, 2009 |
| Appellate Division, Third Department |
| Robert Cancellaro, as Guardian ad Litem of Destany Cancellaroand Another, Respondent, v John R. Shults III, Appellant, et al.,Defendants. |
—[*1] Basch & Keegan, L.L.P., Kingston (Eli B. Basch of counsel), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered February 10,2009 in Ulster County, which, among other things, denied a motion by defendant John R. ShultsIII for summary judgment dismissing the complaint against him.
Plaintiff is the guardian ad litem for two children who were seriously injured in a December2004 collision between a vehicle driven by their mother, defendant Angelina Velez, in whichthey were passengers, and a vehicle driven by defendant John R. Shults III (hereinafterdefendant). The accident occurred near a 90-degree bend on Hurley Avenue, a two-lane road inthe City of Kingston, Ulster County, with a posted speed limit of 30 miles per hour (hereinaftermph). The weather was cold and clear with no precipitation, but there was ice and slush on theroadway from a previous storm. Defendant was traveling toward the curve at a speed heestimated at 25 to 30 mph when he first saw the Velez vehicle approaching him around thecurve. The car allegedly caught his attention because of its excessive speed, which he estimatedat 45 mph. Defendant testified that the vehicle appeared to be under control, but was moving sofast that it was "tipping" as it negotiated the curve. He took no action upon first observing thevehicle because he did not believe it was a threat to him. However, the vehicle [*2]then crossed the center line into defendant's lane of travel and spunso that its passenger side collided with the front of defendant's vehicle. By defendant's testimony,"two seconds" or "a little bit more" passed between his initial sighting of the vehicle and thecollision. He "slammed" the brakes and felt them engage and begin to slow the vehicle, but hiscar did not come to a complete stop before the collision. He stated that there was no time to turnit to either side. Nonparty witnesses in a vehicle behind defendant's confirmed that he had triedto stop prior to the collision. Velez has no independent recollection of the accident.
Plaintiff commenced this action against defendant, Velez, and defendant City of Kingston.Both defendant and the City moved for summary judgment dismissing the complaint. SupremeCourt granted the City's motion and denied defendant's motion. Defendant now appeals.
Under the emergency doctrine, a driver who confronts "a sudden and unexpectedcircumstance which leaves little or no time for thought, deliberation or consideration" may berelieved of liability if the actions taken in response are "reasonable and prudent in the emergencycontext" (Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal quotation marks andcitation omitted]). Whether a driver's actions in an emergency situation were reasonable isordinarily a question of fact, but summary judgment may be granted "when the driver presentssufficient evidence to establish the reasonableness of his or her actions and there is no opposingevidentiary showing sufficient to raise a legitimate question of fact on the issue" (Burnell v Huneau, 1 AD3d 758,760 [2003] [internal quotation marks and citations omitted]). The emergency doctrine hasrepeatedly been held to be applicable in circumstances involving cross-over collisions (see e.g. Dearden v Tompkins County,6 AD3d 783, 784 [2004]; Burnell v Huneau, 1 AD3d at 760; Lamey v County ofCortland, 285 AD2d 885, 886 [2001]).
To establish that his actions were reasonable, defendant presented his testimony andplaintiff's testimony, the nonparty witness accounts, and the report of a licensed professionalengineer who opined that defendant did not have enough time after Velez entered his lane tobegin and complete any evasive maneuver. The expert's opinion was based on two sitevisits—one of them accompanied by defendant—photographs of the accident scene,police records that included a collision reconstruction report, and professional guidelinespertaining to road geometry and reaction times. Supreme Court found that the report lackedfoundational support because it did not provide the physical landmarks on which the expert'smeasurements and calculations were based. The court further noted that there was no recordevidence of the location of the collision[FN*]and found that the collision reconstruction report lacked a factual basis. Noting that defendantqualified his estimate that "two seconds" or "a little bit more" passed between his first sight ofthe Velez vehicle and the collision by saying "I don't know," the court found that he had failed toestablish his prima facie entitlement to summary judgment.
We disagree. In a cross-over collision case, a defendant may meet the burden of establishingentitlement to summary judgment under the emergency doctrine even when "[t]he only evidencein the record concerning [the] defendant's conduct" is the defendant's own testimony (Cohenv Masten, 203 [*3]AD2d 774, 775 [1994], lv denied84 NY2d 809 [1994]). Defendant's estimate of the time that passed after his first sight of theVelez vehicle is not dispositive, because he was not required to anticipate that the car wouldcross into his lane (see Burnell v Huneau, 1 AD3d at 761; Lamey v County ofCortland, 285 AD2d at 886). According to defendant, when the vehicle entered his lane, it"began to spin almost instantly as soon as she aimed—not aimed but started to come atme. It was quick. I mean absolutely a split second from when I noticed her coming at me to whenthe spin started and she came 90 degrees and then just came right up into me." In response, hebraked and braced himself. By this uncontradicted testimony, defendant established on a primafacie basis that he "was confronted with an emergency and was not negligent in regard to theemergency," thereby shifting the burden to plaintiff to establish the existence of issues of fact(Cohen v Masten, 203 AD2d at 776; see Zuckerman v City of New York, 49NY2d 557, 562 [1980]).
Notably, nothing in the police reports, the witness accounts, or the other evidence isinconsistent with defendant's account (contrast Aloi v County of Tompkins, 52 AD3d 1092, 1094 [2008];Quinones v Community ActionCommn. to Help the Economy, Inc., 46 AD3d 1326, 1326-1327 [2007]). Plaintiffargues that defendant should have swerved or braked harder, but nothing in the record indicatesthat he could have done so or that such evasive maneuvers would have prevented the accident(see Cohen v Masten, 203 AD2d at 775-776). "Speculation regarding evasive action thata defendant driver should have taken to avoid a collision, especially when the driver had, atmost, a few seconds to react, does not raise a triable issue of fact" (Dearden v TompkinsCounty, 6 AD3d at 785 [citations omitted]; see Burnell v Huneau, 1 AD3d at 761;Lamey v County of Cortland, 285 AD2d at 887). Likewise, plaintiff's unsupportedassertion that defendant's speed was unreasonable in light of the road conditions is insufficient todefeat defendant's motion.
Rose, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, with costs to defendant John R. Shults III, by reversing so much thereof as deniedsaid defendant's motion; motion granted, summary judgment awarded to said defendant andcomplaint dismissed against him; and, as so modified, affirmed. [Prior Case History: 2009NY Slip Op 30561(U).]
Footnote *: Police records indicate thatwintry road conditions and the presence of emergency personnel prevented investigators fromfinding evidence on the roadway of the point where the collision occurred. In addition,defendant's vehicle was moved before police arrived.