| Parastatidis v Holbrook Rental Ctr., Inc. |
| 2012 NY Slip Op 03615 [95 AD3d 975] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Ioannis Parastatidis, Appellant, v Holbrook Rental Center,Inc., et al., Defendants, and Girl Scouts of Suffolk County, Inc., et al., Respondents. (AndAnother Title.) |
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Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Mahon, J.), entered February 3, 2011, which granted themotion of the defendants Girl Scouts of Suffolk County, Inc., and Marc Bentejac for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
On September 12, 2005, the defendant Desi Liapakis was driving a sports utility vehicle(hereinafter the SUV) eastbound on the Long Island Expressway when it struck the rear of adisabled box truck on the right shoulder between Exits 60 and 61. The impact of the collisionspun the SUV around and propelled it into the middle eastbound travel lane of the expressway,where it was struck by another vehicle owned by the defendant Girl Scouts of Suffolk County,Inc. (hereinafter the Girl Scouts), and driven by the defendant Marc Bentejac. The plaintiff, afront-seat passenger in the SUV, was injured as a result of the accident. At her deposition,Liapakis testified that about one half of a second elapsed between the initial collision with thebox truck, and the second collision with the vehicle driven by Bentejac. According to Bentejac'sdeposition testimony, he first observed the SUV about three seconds prior to striking it, and theSUV was propelled into his lane of travel less than one second after its initial collision with thebox truck. Although he applied his brakes very hard, he was unable to avoid striking the SUV.
The " '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 Kenney vCounty of Nassau, 93 AD3d 694 [2012]; Davis v Metropolitan Tr. Auth., 92 AD3d 825 [2012]; Smit v Phillips, 74 AD3d 782, 783[2010]). 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, thoseissues may in appropriate circumstances [*2]be determined as amatter of law (see Kenney v County ofNassau, 93 AD3d 694 [2012]; Davis v Metropolitan Tr. Auth., 92 AD3d 825 [2012]; Brannan v Korn, 84 AD3d 1140[2011]; Smit v Phillips, 74 AD3d at 783).
Here, the Girl Scouts and Bentejac made a prima facie showing of their entitlement tojudgment as a matter of law by submitting evidence establishing that Bentejac was faced with anemergency not of his own making when the SUV spun around and was propelled into his lane oftravel, leaving him with no more than seconds to react and virtually no opportunity to avoid acollision (see Kenney v County ofNassau, 93 AD3d 694 [2012]; Brannan v Korn, 84 AD3d at 1140; Smit vPhillips, 74 AD3d at 783). In opposition, the plaintiff failed to raise a triable issue of fact asto whether Bentejac's reaction to the emergency was unreasonable (see Kenney v County of Nassau, 93AD3d 694 [2012]; Brannan v Korn, 84 AD3d at 1141; Smit v Phillips, 74AD3d at 783). Accordingly, the Supreme Court properly granted the motion of the Girl Scoutsand Bentejac for summary judgment dismissing the complaint insofar as asserted against them.Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.