| Davis v Metropolitan Tr. Auth. |
| 2012 NY Slip Op 01423 [92 AD3d 825] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Maxine Davis, Respondent, v Metropolitan TransitAuthority, Defendant, and MTA Bus Company, Appellant. |
—[*1] Alan Ross & Associates, P.C., Brooklyn, N.Y. (Stuart K. Gechlik of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant MTA Bus Companyappeals from so much of an order of the Supreme Court, Kings County (Schneier, J.), enteredNovember 9, 2010, as denied that branch of the defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant MTA Bus Company is granted.
The Supreme Court should have granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant MTA BusCompany (hereinafter the defendant) on the ground that it was not at fault in the happening of thesubject accident.
" '[T]he emergency doctrine holds that those faced with a sudden and unexpectedcircumstance, not of their own making, that leaves them with little or no time for reflection orreasonably causes them to be so disturbed that they are compelled to make a quick decisionwithout weighing alternative courses of conduct, may not be negligent if their actions arereasonable and prudent in the context of the emergency' " (Evans v Bosl, 75 AD3d 491, 492 [2010], quoting Bello v Transit Auth. of N.Y. City, 12AD3d 58, 60 [2004]; see Miloscia vNew York City Bd. of Educ., 70 AD3d 904, 905 [2010]; 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 for purposes of application of the emergency doctrine (see Lonergan v Almo, 74 AD3d902, 903 [2010]; Khan vCanfora, 60 AD3d 635, 636 [2009]), those issues may in appropriate circumstances bedetermined as a matter of law (see Tsaiv Zong-Ling Duh, 79 AD3d 1020, 1021 [2010]).
In support of the motion for summary judgment, the defendant relied on the plaintiff'sGeneral Municipal Law § 50-h hearing testimony, her deposition testimony, and thedeposition testimony of Donnell Robinson, an employee of the defendant who was the operatorof the bus the [*2]plaintiff was a passenger on when the accidentoccurred. Those submissions established the defendant's prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against it by demonstrating thatRobinson was confronted with a sudden and unexpected circumstance not of his own making andthat, under the circumstances, his actions were reasonable and prudent in the context of thatemergency.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's assertion thatthere was a triable issue of fact as to the application of the emergency doctrine in this casebecause the bus was speeding just prior to the accident was speculative (see Gallagher v McCurty, 85 AD3d1109, 1110 [2011]; Thompson vSchmitt, 74 AD3d 789, 790 [2010]; Yelder v Walters, 64 AD3d 762, 765 [2009]; Batts v Page, 51 AD3d 833, 834[2008]; Sheppeard v Murci, 306 AD2d 268, 268 [2003]; Wolf v We Transp., 274AD2d 514 [2000]).
The parties' remaining contentions either are without merit or have been rendered academic.Mastro, A.P.J., Angiolillo, Eng and Cohen, JJ., concur.