| Marks v Robb |
| 2011 NY Slip Op 09284 [90 AD3d 863] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Oneka Marks, Respondent, v John J. Robb et al.,Defendants, and Kevin J. Goding, Appellant. |
—[*1] Bradley Gillam, Melville, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Kevin J. Goding appeals,as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Brandveen, J.), entered March 4, 2011, as denied his motion for summary judgment dismissingthe complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action concerns an accident involving four motor vehicles which occurred at anintersection in Lynbrook. The plaintiff alleged that his vehicle was struck by a vehicle operatedby the defendant Esther G. Urquilla, propelling the plaintiff's vehicle across several lanes oftraffic into a vehicle operated by the defendant Kevin J. Goding (hereinafter the appellant) whichwas traveling in the opposite direction.
The appellant moved for summary judgment dismissing the complaint insofar as assertedagainst him on the ground that he was faced with a sudden and unforeseen emergency situation,not of his own making, and that he acted reasonably under the circumstances. In an order enteredMarch 4, 2011, the Supreme Court, among other things, denied the appellant's motion. We affirmthe order insofar as appealed from.
" '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] [internal quotation marks omitted]). "This is not to say that an emergencyautomatically absolves one from liability for his conduct. The standard then still remains that of areasonable man under the given circumstances, except that the circumstances have changed"(Ferrer v Harris, 55 NY2d 285, 293 [1982]; see Williams v City of New York, 88 AD3d 989 [2011];Pawlukiewicz v Boisson, 275 AD2d 446, 447 [2000]). "Both the existence of anemergency and the reasonableness of a party's response thereto will ordinarily present questionsof fact" (Williams v City of New York, 88 AD3d at 990).[*2]
Here, the appellant failed to establish his prima facieentitlement to judgment as a matter of law. The appellant failed to annex all of the pleadings tohis motion as required by statute (see CPLR 3212 [b]; see also Roach v AVR Realty Co.,LLC, 41 AD3d 821, 825 [2007]; Matsyuk v Konkalipos, 35 AD3d 675 [2006]; Hamilton v Cityof New York, 262 AD2d 283 [1999]). Moreover, none of the deposition transcriptssubmitted by the appellant was signed, and those transcripts did not contain a proper certificationas required by CPLR 3116 (b). Furthermore, there was no proof that the deposition transcripts ofthe plaintiff, Urquilla, or the defendant John J. Robb were forwarded to the respective witnessesfor review pursuant to CPLR 3116 (a). Accordingly, none of the transcripts was in admissibleform (see CPLR 3116; see alsoMoffett v Gerardi, 75 AD3d 496 [2010]; Marmer v IF USA Express, Inc., 73 AD3d 868 [2010]; Martinez v 123-16 Liberty Ave. RealtyCorp., 47 AD3d 901 [2008]; see generally Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008[2008]).
The appellant's failure to make a prima facie showing, with evidence in admissible form, thatan emergency situation arose or that his response to such an emergency was reasonable andprudent under the circumstances, necessitated the denial of his motion regardless of thesufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Goodyear v Putnam/NorthernWestchester Bd. of Coop. Educ. Servs., 86 AD3d 551, 552 [2011]; Post v County of Suffolk, 80 AD3d682 [2011]).
The parties' remaining contentions either are without merit or need not be considered in lightof our determination. Mastro, A.P.J., Chambers, Austin and Miller, JJ., concur. [Prior CaseHistory: 2011 NY Slip Op 30608(U).]