| Miloscia v New York City Bd. of Educ. |
| 2010 NY Slip Op 01460 [70 AD3d 904] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Christa Miloscia et al., Appellants, v New York CityBoard of Education et al., Respondents. |
—[*1] Malapero & Prisco, LLP, New York, N.Y. (Frank J. Lombardo of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), datedFebruary 10, 2009, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted by the infant plaintiff Christa Miloscia, aninfant under the age of 14 years, by her father and natural guardian, Joseph Miloscia.
Ordered that the appeal by Joseph Miloscia, individually, is dismissed as abandoned; and itis further,
Ordered that the order is affirmed insofar as appealed from by the plaintiff Christa Miloscia,an infant under the age of 14 years, by her father and natural guardian, Joseph Miloscia; and it isfurther,
Ordered that are bill of costs is awarded to the defendants.
It is undisputed that the infant plaintiff, Christa Miloscia, who was six years old at the timeof the accident, fractured her wrist when the school bus on which she was traveling stopped shortin order to avoid colliding with a car that had suddenly cut in front of the bus. The defendantsmoved for summary judgment dismissing the complaint on the ground that the bus driver actedreasonably in an emergency situation not of his own making.
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.,77 NY2d 322, 327 [1991]). "Although the existence of an emergency and the reasonableness of aparty's response to it will [*2]ordinarily present questions of fact,they may in appropriate circumstances be determined as a matter of law" (Bello v TransitAuth. of N.Y. City, 12 AD3d 58, 60 [2004] [citation omitted]; see Koenig v Lee, 53AD3d 567 [2008]; Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444 [2005]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawby demonstrating that the actions of the bus driver in braking abruptly to avoid a collision with acar that had suddenly pulled out in front of him were reasonably prudent in an emergencysituation not of his own making (see Bello v Transit Auth. of N.Y. City, 12 AD3d at60-61; Brooks v New York City Tr. Auth., 19 AD3d 162 [2005]; Drakes v New YorkCity Tr. Auth., 11 AD3d 580 [2004]; Roviello v Schoolman Transp. Sys., Inc., 10AD3d 356, 356-357 [2004]; Hotkins v New York City Tr. Auth., 7 AD3d 474 [2004]). Inopposition, the infant plaintiff's speculative and conclusory assertions failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Vitale vLevine, 44 AD3d 935, 936 [2007]).
The infant plaintiff's remaining contention, that the defendants should have been precludedfrom raising the emergency doctrine because it was not pleaded as an affirmative defense, is notproperly before this Court (see Miller v Keegan, 67 AD3d 754 [2009]; Adsit vQuantum Chem. Corp., 199 AD2d 899, 900 [1993]). Santucci, J.P., Dickerson, Eng andChambers, JJ., concur.