| Kenney v County of Nassau |
| 2012 NY Slip Op 01799 [93 AD3d 694] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Christine Kenney, Appellant, v County of Nassau,Respondent, and Natalie A. Nelson, Also Known as Natalie A. Thomas,Appellant. |
—[*1] Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), fordefendant-appellant. John Ciampoli, County Attorney, Mineola, N.Y. (Joseph A. Kellermann of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), datedAugust 11, 2010, as granted that branch of the motion of the defendant County of Nassau whichwas for summary judgment dismissing the complaint insofar as asserted against it, and thedefendant Natalie A. Nelson, also known as Natalie A. Thomas, separately appeals, as limited byher brief, from so much of the same order as denied that branch of her separate motion whichwas for summary judgment dismissing the complaint insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from by the plaintiff; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Natalie A.Nelson, also known as Natalie A. Thomas, and the motion of that defendant for summaryjudgment dismissing the complaint insofar as asserted against her is granted; and it is further,
Ordered that one bill of costs is awarded to the defendants, payable by the plaintiff.
The plaintiff was riding a bicycle on Piping Rock Road in the County of Nassau when agroove located between the shoulder and the roadway allegedly caused her to lose control of herbicycle and move in a direction perpendicular to the flow of traffic. The defendant Natalie A.Nelson, also known as Natalie A. Thomas, was driving behind the plaintiff, and upon seeing theplaintiff coming towards her, swerved to avoid hitting her. Nelson's efforts were unsuccessful,her car struck the plaintiff, and the plaintiff allegedly sustained injuries. The plaintiff thereaftercommenced this action against both Nelson and the County. The Supreme Court granted thatbranch of the County's [*2]motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, but denied that branch ofNelson's separate motion which was for summary judgment dismissing the complaint insofar asasserted against her. The plaintiff and Nelson separately appeal.
Pursuant to Nassau County Administrative Code § 12-4.0 (e), no civil action shall bemaintained against the County for injuries sustained by reason of a street or highway defectunless written notice of such defect was "made in writing by certified or registered mail directedto the Office of the County Attorney, One West Street, Mineola, New York, 11501." Theplaintiff's sole contention on her appeal is that the Supreme Court should have denied that branchof the County's motion which was for summary judgment because the County allegedlysubmitted equivocal evidence on the issue of whether it received prior written notice of thegroove in the roadway.
Contrary to the plaintiff's contention, the County presented unequivocal evidence that theOffice of the County Attorney, as statutory designee, did not receive prior written notice of thealleged defect in the roadway and that the County did not have constructive notice of the allegeddefect (see Highway Law § 139 [2]). The plaintiff failed to raise a triable issue offact in opposition. Although she insists that the record leaves open the possibility that the NassauCounty Department of Public Works received prior written notice of the alleged defect at issue,such notice would not satisfy the statutory requirement that prior written notice be given to theOffice of the County Attorney (seeGorman v Town of Huntington, 12 NY3d 275, 279-280 [2009]; Vardoulias v County of Nassau, 84AD3d 787, 788-789 [2011]). Accordingly, the Supreme Court properly granted that branchof the County's motion which was for summary judgment dismissing the complaint insofar asasserted against it (see Griesbeck vCounty of Suffolk, 44 AD3d 618 [2007]).
Regarding Nelson's motion for summary judgment, "[t]he common-law emergency doctrinerecognizes that when an actor is faced with a sudden and unexpected circumstance which leaveslittle or no time for thought, deliberation or consideration, or causes the actor to be reasonably sodisturbed that the actor must make a speedy decision without weighing alternative courses ofconduct, the actor may not be negligent if the actions taken are reasonable and prudent in theemergency context, provided the actor has not created the emergency" (Lifson v City of Syracuse, 17 NY3d492, 497 [2011] [internal quotation marks omitted]). "Although the existence of anemergency and the reasonableness of the response to it generally present issues of fact, thoseissues may in appropriate circumstances be determined as a matter of law" (Smit v Phillips, 74 AD3d 782, 783[2010] [citation and internal quotation marks omitted]; see Bello v Transit Auth. of N.Y. City, 12 AD3d 58, 60-61 [2004]).Further, "[a] driver is not obligated to anticipate that a vehicle will go out of control and cross theroadway laterally, perpendicular to the flow of traffic on the roadway. Such an event constitutes aclassic emergency situation implicating the emergency doctrine" (Smit v Phillips, 74AD3d at 783).
The evidence submitted by Nelson in support of that branch of her motion which was forsummary judgment dismissing the complaint insofar as asserted against her established that shewas faced with an emergency not of her own making, leaving her with only seconds to react andvirtually no opportunity to avoid a collision (id.). Under these circumstances, Nelsonestablished her prima facie entitlement to judgment as a matter of law. Mere speculation that shemay have failed to take some accident avoidance measures, or that she in some other waycontributed to the occurrence of the accident is insufficient to defeat that branch of her separatemotion (id.; see Cancellaro vShults, 68 AD3d 1234, 1237 [2009]; Trzepacz v Jara, 11 AD3d 531 [2004]). In opposition, the plaintifffailed to raise a triable issue of fact as to whether Nelson unreasonably reacted to the emergency(see Smit v Phillips, 74 AD3d at 783). Accordingly, the Supreme Court should havegranted that branch of Nelson's separate motion which was for summary judgment dismissing thecomplaint insofar as asserted against her (see Palma v Sherman, 55 AD3d 891, 891-892 [2008]). Dickerson,J.P., Belen, Austin and Miller, JJ., concur.