| Smit v Phillips |
| 2010 NY Slip Op 04769 [74 AD3d 782] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Cassandra Smit, Respondent, v Mariel S. Phillips et al.,Respondents, and George H. Smit, Appellant. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for defendants Mariel S. Phillips and Ronald D. Phillips.
In an action to recover damages for personal injuries, the defendant George H. Smit appeals,as limited by his brief, from so much of an order of the Supreme Court, Nassau County(McCarty, J.), dated October 5, 2009, as denied his motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellant's motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against him is granted.
The plaintiff was a passenger in a motor vehicle which was operated by her husband, thedefendant George H. Smit (hereinafter the appellant), in the leftmost lane of the southboundroadway of the Sagtikos Parkway in Suffolk County, when it was struck by a motor vehicleowned by the defendant Ronald D. Phillips and operated by his daughter, the defendant Mariel S.Phillips. The Phillips' vehicle was traveling laterally across the roadway in an eastbounddirection, perpendicular to the flow of traffic, and had already collided with a vehicle operatedby the defendant Stanley W. Cullinan, traveling in the rightmost lane of the southboundroadway. According to the appellant's testimony, he first observed the Phillips' vehicle one tothree seconds before it impacted his car.
" '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" ' " (Koenig v Lee, 53 AD3d 567, 567 [2008], quoting Vitale v Levine, 44 AD3d 935,936 [2007]). "Although the existence of an emergency and the reasonableness of the response toit generally present issues of fact (seeMakagon v Toyota Motor Credit Corp., 23 AD3d 443, 444 [2005]), those issues 'may inappropriate circumstances be determined as a matter of law' " (Vitale v Levine, 44 AD3dat 936, quoting Bello v Transit Auth. ofN.Y. City, 12 AD3d 58, 60 [2004]). A driver is not obligated to anticipate that a vehiclewill go out of control and cross the roadway laterally, perpendicular to the flow of traffic on theroadway. Such an event constitutes a classic emergency [*2]situation implicating the emergency doctrine (see Marsch v Catanzaro, 40 AD3d941, 942 [2007]).
The evidence submitted by the appellant in support of his motion for summary judgmentestablished that he was faced with an emergency not of his own making, leaving him with onlyseconds to react and virtually no opportunity to avoid a collision (see Lee v Ratz, 19 AD3d 552, 553[2005]). Under these circumstances, the appellant established his prima facie entitlement tojudgment as a matter of law. Mere speculation that the appellant may have failed to take someaccident avoidance measures, or that he in some other way contributed to the occurrence of theaccident is insufficient to defeat the appellant's motion for summary judgment (see Koenig vLee, 53 AD3d at 568). In opposition, no triable issue of fact was raised as to whether theappellant's reaction to the emergency was unreasonable, or whether any negligence on his partprior to the initial collision contributed to bringing about the emergency (see Lee v Ratz,19 AD3d at 553). Accordingly, the appellant's motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him should have been granted. Mastro,J.P., Eng, Leventhal and Roman, JJ., concur.