| Warley v Grampp |
| 2013 NY Slip Op 01114 [103 AD3d 997] |
| February 21, 2013 |
| Appellate Division, Third Department |
| Tara Warley, Respondent, v Joy L. Grampp, Appellant, etal., Defendants. |
—[*1] O'Connor, O'Connor, Bresee & First, PC, Albany (Margaret E. Dunham of counsel),for respondent.
Garry, J. Appeal from an order of the Supreme Court (Coccoma, J.), enteredNovember 17, 2011 in Otsego County, which denied defendant Joy L. Grampp's motionfor summary judgment dismissing the complaint against her.
In November 2008, plaintiff, a developmentally disabled adult, was traveling northon Route 28 in the Town of Milford, Otsego County in a bus operated by defendantOneonta Public Transit. In response to plaintiff's request, the driver stopped the busalong the road's east shoulder to allow plaintiff to exit. Defendant Joy L. Grampp(hereinafter defendant) was traveling south on Route 28 and saw the stopped bus fromabout the length of a football field away. Defendant then saw plaintiff enter the highwayfrom behind the bus, but was unable to avoid striking her, resulting in serious injuries toplaintiff. Plaintiff commenced this action alleging that defendant's negligent operation ofher vehicle caused the accident. Defendant moved for summary judgment dismissing thecomplaint against her. Supreme Court denied the motion, and defendant appeals.
In seeking summary judgment, defendant bore the initial burden to establish "that notriable issues of fact existed [regarding] whether [she] acted prudently under thecircumstances" (Corina v Boys& Girls Club of Schenectady, Inc., 82 AD3d 1477, 1477 [2011] [internalquotation marks, brackets and citation omitted]). Defendant testified that she wastraveling at about 45 miles per hour when she first saw the stopped bus and that, as sheapproached, she was "watching toward the front of the lane, the back of the bus" and sawno one outside the bus until after she reached it. Defendant stated that the bus wasbeginning to reenter the highway when her vehicle drew even with it and that defendant'svehicle was about midway between the front and back of the moving bus when she firstsaw plaintiff "running" into the street from behind the bus, with her head turned in theopposite direction. Defendant testified that she immediately hit the brakes and tried toswerve to the right but could not avoid striking plaintiff. William Fisher, an accidentreconstruction specialist, investigated the accident on defendant's behalf. Based upon hismeasurements and calculations, he opined that she was traveling at less than the postedspeed limit and had insufficient time to react upon seeing plaintiff. This evidence wassufficient to establish a prima facie entitlement to summary judgment (see DeJesus v Alba, 63 AD3d460, 463 [2009], affd 14 NY3d 860 [2010]; St. Andrew v O'Brien, 45AD3d 1024, 1027 [2007], lv dismissed and denied 10 NY3d 929 [2008]).
The burden thus shifted to plaintiff to establish the existence of triable issues of factas to defendant's negligence (see Colaruotolo v Crowley, 290 AD2d 863, 864[2002]), and we agree with Supreme Court that plaintiff met this burden. Defendantacknowledged that she did not slow down when she saw the stopped bus, although sheknew it was possible that someone had gotten off. She further testified that three or fourseconds passed between her first sight of plaintiff and the collision, contradicting Fisher'sopinion regarding the reaction time. Finally, although she testified that she swerved hervehicle to the right in an effort to avoid plaintiff, she also testified that her vehicle wasstill in the middle of her lane of traffic when the collision occurred. Accordingly,viewing the evidence in the light most favorable to plaintiff (see Vega v Restani Constr.Corp., 18 NY3d 499, 503 [2012]), we find triable issues of fact as to whetherdefendant's speed was prudent under the circumstances and whether she had sufficienttime to avoid the collision (see Corina v Boys & Girls Club of Schenectady, Inc.,82 AD3d at 1478-1479; St. Andrew v O'Brien, 45 AD3d at 1028; Kiernan vHendrick, 116 AD2d 779, 781-782 [1986], appeal dismissed 68 NY2d 661[1986]).
Defendant further contends that she is entitled to summary judgment based uponapplication of the emergency doctrine, which provides that "a defendant will not beconsidered negligent . . . if he or she is faced with an emergency situation,not of his or her own making, has little or no time to consider an alternative course ofconduct and acts reasonably under the circumstances" (Schlanger v Doe, 53 AD3d827, 828 [2008]; seeHubbard v County of Madison, 93 AD3d 939, 940 [2012], lv denied 19NY3d 805 [2012]). However, even assuming that this issue has been preserved for ourreview (see Noriega v King,15 AD3d 267, 267 [2005]), application of this doctrine ordinarily involves factualdeterminations, and supports an award of summary judgment only in very limitedcircumstances, where no opposing evidence presents factual issues relative to thereasonableness of a defendant's actions (see Cancellaro v Shults, 68 AD3d 1234, 1236 [2009],lv denied 14 NY3d 706 [2010]). Here, there are factual issues requiring trial (see Lopez-Viola v Duell, 100AD3d 1239, 1242 [2012]; Cahoon v Frechette, 86 AD3d 774, 778 [2011];Cookingham v Spakowski, 290 AD2d 638, 639-640 [2002]).
Mercure, J.P., Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.