| Lonergan v Almo |
| 2010 NY Slip Op 04962 [74 AD3d 902] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Sandra Lonergan et al., Respondents v Joseph A. Almo etal., Defendants, and Joseph Hess, Appellant. |
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In an action to recover damages for personal injuries and wrongful death, etc., the defendantJoseph Hess appeals, as limited by his brief, from so much of an order of the Supreme Court,Suffolk County (Jones, Jr., J.), dated July 7, 2009, as denied that branch of his motion which wasfor summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellant's motion which was for summary judgment dismissing the complaintinsofar as asserted against him is granted.
At approximately 8:10 p.m., on December 27, 2003, James Goess (hereinafter the decedent),a pedestrian, was struck by a motor vehicle owned by the defendant John Faraci and operated bythe defendant Joseph A. Almo, in the left lane of the eastbound roadway of Montauk Highway,in Suffolk County. As a result of the impact, the decedent's body was propelled onto thewindshield of the motor vehicle being operated by Almo, and ultimately landed in the path of amotor vehicle driven by the appellant in the left lane of the westbound roadway of MontaukHighway. The appellant testified at his deposition that he was driving at a speed ofapproximately 35 miles per hour when he first saw the decedent lying in the roadway about 15feet in front of his car. The appellant swerved to the right, in an attempt to avoid making contactwith the decedent, but the front left tire of his car "caught" the decedent's foot. The contactoccurred within one second of when he first observed the decedent in the roadway. The appellantacknowledged at his deposition that he did not attempt to apply his brakes. The record furtherreveals that it was dark in the area where the accident occurred and that the decedent was dressedin dark clothing.
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]; see Koenig[*2]v Lee, 53 AD3d 567, 567 [2008]; Vitale v Levine, 44 AD3d 935,936 [2007]). Although the existence of an emergency and the reasonableness of the response to itgenerally present issues of fact, those issues "may in appropriate circumstances be determined asa matter of law" (Vitale v Levine, 44 AD3d at 936 [internal quotation marks omitted]). Adriver is not obligated to anticipate a body lying in the roadway, in the direct path of his motorvehicle. "Such an event constitutes a classic emergency situation, implicating the 'emergencydoctrine' " (Marsch v Catanzaro, 40AD3d 941, 942 [2007]).
The evidence which the appellant submitted in support of his motion for summary judgmentestablished that he was faced with an emergency situation, not of his own making, leaving himwith only a second to react and virtually no opportunity to avoid a collision (see Koenig vLee, 53 AD3d at 568). Under these circumstances, the appellant established his prima facieentitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triableissue of fact as to whether the appellant's reaction to the emergency was unreasonable, orwhether any negligence on his part prior to his first seeing the decedent in the roadwaycontributed to bringing about the emergency (id.). Mere speculation that the appellantmay have avoided making contact with the decedent's body if he had applied the brake, or insome other way contributed to the occurrence of the accident, was insufficient to defeat theappellant's motion for summary judgment (id.).
Accordingly, that branch of the appellant's motion which was for summary judgmentdismissing the complaint insofar as asserted against him should have been granted. Rivera, J.P.,Florio, Angiolillo and Austin, JJ., concur.