| Patterson v Central N.Y. Regional Transp. Auth. (CNYRTA) |
| 2012 NY Slip Op 03345 [94 AD3d 1565] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| Gail E. Patterson, Respondent, v Central New York RegionalTransportation Authority (CNYRTA) et al., Appellants. |
—[*1] Alexander & Catalano, LLC, Syracuse (Peter J. Addonizio of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.),entered February 9, 2011 in a personal injury action. The order, insofar as appealed from, deniedthe motion of defendants for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, defendants' motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained while riding on a public bus owned and operated by defendants. According to plaintiff,she was standing in the aisle of the bus when the driver suddenly applied the brakes, causing herto lurch forward. Although plaintiff did not fall to the ground, she testified at her deposition thatshe heard something "pop" in her right knee when she leaned forward. Plaintiff alleged in her billof particulars that she sustained a fracture of the "proximal tibia, laterally, involving the tibialplateau," and underwent surgery. The bus driver testified at her deposition that the incidentoccurred when she stopped the bus as it was pulling away from the curb after picking up severalpassengers. The driver applied the brakes in order to avoid hitting a boy on a skateboard who"came out of nowhere" and rode in front of the bus. According to plaintiff, the bus driveroperated the bus in a negligent manner, and defendants were vicariously liable for her negligence.Following discovery, defendants moved for summary judgment dismissing the complaint and fordismissal of the complaint for failure to state a cause of action. In support of their request forsummary judgment, defendants contended that the emergency doctrine applied and that the busdriver's actions were reasonable under the circumstances. We agree with defendants thatSupreme Court erred in denying the motion insofar as defendants sought summary judgmentdismissing the complaint.
Under the emergency doctrine, " 'when [a driver] is faced with a sudden and unexpectedcircumstance which leaves little or no time for thought, deliberation or consideration, or causesthe [driver] to be reasonably so disturbed that [he or she] must make a speedy decision withoutweighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are[*2]reasonable and prudent in the emergency context' "(Caristo v Sanzone, 96 NY2d 172, 174 [2001], quoting Rivera v New York City Tr.Auth., 77 NY2d 322, 327 [1991], rearg denied 77 NY2d 990 [1991]).
Here, defendants met their initial burden by establishing as a matter of law that theemergency doctrine applied, inasmuch as the boy on the skateboard rode unexpectedly in front ofthe bus as it was pulling away from the curb and the driver was therefore compelled to apply thebrakes suddenly in order to avoid hitting him. In response, plaintiff failed to raise an issue of factwith respect to the applicability of the emergency doctrine or the reasonableness of the driver'sactions. Although "it generally remains a question for the trier of fact to determine whether anemergency existed and, if so, whether the [driver's] response thereto was reasonable" (Schlanger v Doe, 53 AD3d 827,828 [2008]), summary judgment is appropriate where, as here, " 'the driver presents sufficientevidence to establish the reasonableness of his or her actions [in an emergency situation] andthere is no opposing evidentiary showing sufficient to raise a legitimate question of fact' "(McGraw v Glowacki, 303 AD2d 968, 969 [2003]; see Ward v Cox, 38 AD3d 313, 314 [2007]). Plaintiff's contentionsthat the driver could or should have seen the skateboarder earlier or applied the brake lessforcefully are based entirely on speculation and thus are insufficient to raise an issue of fact todefeat the motion (see generallyBellassai v Roberts Wesleyan Coll., 59 AD3d 1125, 1126 [2009]).Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.