| Hendrickson v Philbor Motors, Inc. |
| 2012 NY Slip Op 08488 [101 AD3d 812] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Roseanne Hendrickson et al., Plaintiffs, v Philbor Motors,Inc., Doing Business as Hempstead Ford, et al., Defendants. (Action No. 1.) William Malone,Plaintiff v Philbor Motors, Inc., Doing Business as Hempstead Ford, et al., Defendants, CooperTire and Rubber Company, Appellant, and Rosanne Hendrickson, Respondent. (Action No.2.) |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
In two related actions to recover damages for personal injuries, etc., which were joined fortrial, Cooper Tire and Rubber Company, a defendant in both actions, appeals from an order of theSupreme Court, Nassau County (K. Murphy, J.), entered June 22, 2010, which granted themotion of Roseanne Hendrickson for summary judgment dismissing the complaint and all crossclaims insofar as asserted against her in action No. 2.
Ordered that the appeal from so much of the order as granted those branches of the motion ofRoseanne Hendrickson which were for summary judgment dismissing the complaint and thecross claims of Philbor Motors, Inc., doing business as Hempstead Ford, and Ford MotorCompany insofar as asserted against her in action No. 2 is dismissed, as the defendant CooperTire and Rubber Company is not aggrieved by those portions of the order (see CPLR5511; Mixon v TBV, Inc., 76 AD3d144, 159 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and that branch of themotion of Roseanne Hendrickson which was for summary judgment dismissing the cross claimsof the defendant Cooper Tire and Rubber Company insofar asserted against her in action No. 2 isdenied; and it is further,
Ordered that one bill of costs is awarded to the appellant.
"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 are[*2]reasonable and prudent in the emergency context' " (Miloscia v New York City Bd. ofEduc., 70 AD3d 904, 905 [2010], quoting Rivera v New York City Tr. Auth., 77NY2d 322, 327 [1991]; see Williams vCity of New York, 88 AD3d 989 [2011]). "This is not to say that an emergencyautomatically absolves one from liability for his [or her] conduct. The standard then still remainsthat of a reasonable [person] under the given circumstances, except that the circumstances havechanged" (Ferrer v Harris, 55 NY2d 285, 293 [1982]; see Pawlukiewicz vBoisson, 275 AD2d 446, 447 [2000]). "Both the existence of an emergency and thereasonableness of a party's response thereto will ordinarily present questions of fact"(Williams v City of New York, 88 AD3d at 990; see Crawford-Dunk v MV Transp., Inc., 83 AD3d 764 [2011]).
Although the defendant Roseanne Hendrickson established that she was confronted with anemergency situation when the tire of the vehicle she was driving suddenly blew out, she failed tomeet her prima facie burden of establishing that her subsequent actions were reasonable as amatter of law (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).Accordingly, that branch of her motion which was for summary judgment dismissing the crossclaims asserted against her by the defendant Cooper Tire and Rubber Company (hereinafterCooper Tire) should have been denied. In light of this determination, we need not examine thesufficiency of the papers submitted in opposition to her motion (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Cooper Tire's remaining contention is not properly before this Court. Dillon, J.P., Lott,Roman and Cohen, JJ., concur.