| Crawford-Dunk v MV Transp., Inc. |
| 2011 NY Slip Op 03019 [83 AD3d 764] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Diane Crawford-Dunk, Respondent, v MV Transportation,Inc., et al., Appellants, and Leo Lazurus, Respondent. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants MV Transportation,Inc., and Maurice M. Pugh appeal from an order of the Supreme Court, Kings County (Solomon,J.), dated March 18, 2010, which denied that branch of their motion which was for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the order is affirmed, with costs.
"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" (Tsai v Zong-Ling Duh, 79 AD3d 1020, 1021 [2010]; see Riverav New York City Tr. Auth., 77 NY2d 322, 327 [1991]; Koenig v Lee, 53 AD3d 567, 567 [2008]; Bello v Transit Auth. of N.Y. City, 12AD3d 58, 60 [2004]). The existence of an emergency and the reasonableness of an actor'sresponse to it will ordinarily present questions of fact (see Tsai v Zong-Ling Duh, 79AD3d at 1021; Koenig v Lee, 53 AD3d at 567; Bello v Transit Auth. of N.Y.City, 12 AD3d at 60).
Here, the defendants MV Transportation, Inc., and Maurice M. Pugh (hereinafter together theappellants) failed to establish their prima facie entitlement to judgment as a matter of law, and,accordingly, the Supreme Court properly denied that branch of their motion which was forsummary judgment dismissing the complaint and all cross claims insofar as asserted against them(see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of thatbranch of their motion, the appellants failed to eliminate all triable issues of fact as to whetherPugh was faced with an emergency situation not of his own making and, if so, whether hisactions were reasonable and prudent in that context (see Takle v New York City Tr. Auth., 14 AD3d 608 [2005];Gildersleeve v Leo, 274 AD2d 547 [2000]; Raposo v Raposo, 250 AD2d 420[1998]). Since the appellants failed to meet their initial burden, it is not necessary to review thesufficiency of the opposition papers (see Winegrad v New [*2]York Univ. Med. Ctr., 64 NY2d 851 [1985]). Florio, J.P.,Dickerson, Leventhal and Belen, JJ., concur.