| Brannan v Korn |
| 2011 NY Slip Op 04402 [84 AD3d 1140] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Joan Brannan, Appellant, v Joseph D. Korn et al.,Respondents, et al., Defendants. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Winslow, J.), entered April 5, 2010, which granted themotion of the defendants Joseph D. Korn and Rebecca Korn for summary judgment dismissingthe complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
On September 22, 2004, at approximately 9:40 p.m., the plaintiff, while attempting to walkacross Ring Road, north of Stewart Avenue in Garden City, was struck by a hit and run driverand, as a result of the impact, was propelled onto a second vehicle operated by the defendantJoseph D. Korn (hereinafter Korn) and owned by the defendant Rebecca Korn (hereinaftertogether the respondents).
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., 77NY2d 322, 327 [1991]; see Tsai v Zong-Ling Duh, 79 AD3d 1020 [2010]; Lonerganv Almo, 74 AD3d 902 [2010]; Koenig v Lee, 53 AD3d 567, 567 [2008]). Althoughthe existence of an emergency and the reasonableness of the response to it generally presentissues of fact, those issues "may in appropriate circumstances be determined as a matter of law"(Vitale v Levine, 44 AD3d 935, 936 [2007] [internal quotation marks omitted]).
The evidence submitted by the respondents in support of their motion for summary judgmentestablished that Korn was faced with an emergency situation, not of his own making, leaving himwith seconds to react and virtually no opportunity to avoid a collision (see Lonergan vAlmo, 74 AD3d 902 [2010]). Under these circumstances, the respondents established theirprima facie entitlement to judgment as a matter of law. In opposition, the plaintiff's speculativeand conclusory assertions failed to raise a triable issue of fact as to whether Korn's reaction to theemergency was [*2]unreasonable, or whether any negligence onhis part proximately contributed to bringing about the emergency or the accident.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the respondents' motion for summaryjudgment dismissing the complaint insofar as asserted against them. Mastro, J.P., Hall, Lott andCohen, JJ., concur.