| Mitchell v City of New York |
| 2011 NY Slip Op 08734 [89 AD3d 1068] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Maureen Mitchell, as Administrator of the Estate of Michael D. Mitchell,Deceased, Appellant, v City of New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and JaredHatchliffe of counsel), for respondents.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from so much ofan order of the Supreme Court, Queens County (Flug, J.), entered January 3, 2011, as denied hercross motion for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
On December 22, 2008, at approximately 12:30 p.m., the defendant Richard M. Colucci, a NewYork City Police Department Detective, was driving eastbound in the right lane on the Belt Parkway inQueens County in the course of his employment. At that time, the decedent, Michael D. Mitchell, wasattempting to enter the parkway on an entrance ramp. At his deposition, Colucci testified that in orderto avoid a disabled vehicle in the right lane immediately in front of his vehicle, he tried to exit theparkway via an exit ramp, slid across an icy "island" separating the exit ramp from the entrance ramp onwhich the decedent was driving, and collided with the decedent's vehicle. The decedent ultimately died,allegedly as a result of the injuries he sustained in the collision.
The plaintiff, as administrator of the decedent's estate, commenced this action against Colucci andthe City of New York. The defendants moved for summary judgment dismissing the complaint, and theplaintiff cross-moved for summary judgment on the issue of liability. In opposition to the cross motion,the defendants argued that Colucci had reacted reasonably to an emergency situation not of his ownmaking. In the order appealed from, the Supreme Court, among other things, denied the cross motion.We affirm the order insofar as appealed from by the plaintiff.
The " 'emergency doctrine holds that those faced with a sudden and unexpected circumstance, notof their own making, that leaves them with little or no time for reflection or reasonably causes them tobe so disturbed that they are compelled to make a quick decision without weighing alternative coursesof conduct, may not be negligent if their actions are reasonable and [*2]prudent in the context of the emergency' " (Evans v Bosl, 75 AD3d 491, 492[2010], quoting Bello v Transit Auth. of N.Y.City, 12 AD3d 58, 60 [2004]; seeMiloscia v New York City Bd. of Educ., 70 AD3d 904, 905 [2010]; Vitale v Levine, 44 AD3d 935, 936[2007]). The existence of an emergency and the reasonableness of the response to it generally presentissues of fact (see Lonergan v Almo, 74AD3d 902 [2010]; Khan vCanfora, 60 AD3d 635 [2009]). Here, in opposition to the plaintiff's prima facie showing ofentitlement to judgment as a matter of law on the issue of liability, the defendants raised triable issues offact as to whether Colucci was confronted with an emergency situation not of his own making andwhether his reaction was reasonable under the circumstances.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the plaintiff's cross motion for summary judgmenton the issue of liability. Florio, J.P., Dickerson, Chambers and Cohen, JJ., concur.