| Pavane v Marte |
| 2013 NY Slip Op 05991 [109 AD3d 970] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Martin Pavane et al., Appellants, v Samidra Marteet al., Respondents. |
—[*1] Mound Cotton Wollan & Greengrass, Garden City, N.Y. (Rodney E. Gould, RobertC. Mueller, and Raymond S. Mastrangelo of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Kings County (Graham, J.), dated August 9, 2012, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
The defendant Samidra Marte was employed by the defendant Oasis Children'sServices (hereinafter together with the defendant Oasis Community Corporation, theOasis defendants), as a counselor for a children's summer program. On August 22, 2008,she, along with other counselors, was escorting a number of children through CentralPark. At that time, the plaintiff Martin Pavane (hereinafter the injured plaintiff) wasbicycling through the park. Marte was escorting a group of children across the street atthe intersection of West Drive and 96th Street, when she allegedly came into contact withthe injured plaintiff, causing him to fall to the ground and sustain injuries. The injuredplaintiff, and his wife suing derivatively, commenced this action to recover damages forpersonal injuries. The defendants moved for summary judgment dismissing thecomplaint, relying on the emergency doctrine. In the order appealed from, the SupremeCourt granted the defendants' motion.
Contrary to the plaintiffs' contention, the defendants' motion for summary judgmentwas supported by evidence in admissible form. The unsigned excerpts of Marte's and theOasis defendants' deposition testimony, which the defendants submitted in support oftheir motion, were admissible under CPLR 3116 (a) since they were submitted by theparty deponents themselves and, accordingly, those transcripts were adopted as accurateby those deponents (see Vetranov J. Kokolakis Contr., Inc., 100 AD3d 984, 986 [2012]; Rodriguez v Ryder Truck, Inc.,91 AD3d 935, 936 [2012]; Ashif v Won Ok Lee, 57 AD3d 700, 700 [2008]).Additionally, although the defendants initially failed to submit the certification page ofthe depositions of nonparties Richard Thompson McKay and Rachel Carrion, as well asthose for the depositions of Marte and the Oasis defendants, they submitted those [*2]certifications in reply papers in response to the plaintiffs'arguments in opposition (see Rodriguez v Ryder Truck, Inc., 91 AD3d at 936).Under the circumstances of this case, the late submission did not prejudice the plaintiffs,and the Supreme Court properly considered these certifications (see id.; Mazzarelli v 54 Plus RealtyCorp., 54 AD3d 1008, 1008 [2008]; cf. Navarrete v A & V Pasta Prods., Inc., 32 AD3d 1003,1004 [2006]). Furthermore, although unsigned, as noted above, the transcripts ofMcKay's and Carrion's depositions were certified, and the plaintiffs did not raise anychallenges to their accuracy. Thus, the transcripts qualified as admissible evidence forpurposes of the defendants' motion for summary judgment (see Rodriguez v RyderTruck, Inc., 91 AD3d at 936; Zalot v Zieba, 81 AD3d 935, 936 [2011]; Bennett vBerger, 283 AD2d 374 [2001]; Zabari v City of New York, 242 AD2d 15,17 [1998]). However, the unsigned, uncertified excerpt of the injured plaintiff'sdeposition was not in admissible form, nor was the uncertified, unsworn police reportsubmitted by the defendants. Accordingly, neither of these items should have beenconsidered in determining whether the defendants satisfied their prima facie burden(see Rodriguez v Ryder Truck, Inc., 91 AD3d at 936).
"Under the emergency doctrine, when an actor is faced with a sudden andunexpected circumstance which leaves little or no time for thought, deliberation orconsideration, or causes the actor to be reasonably so disturbed that the actor must makea speedy decision without weighing alternative courses of conduct, the actor may not benegligent if the actions taken are reasonable and prudent in the emergency context" (Marks v Robb, 90 AD3d863, 863-864 [2011] [internal quotation marks omitted]; see Koenig v Lee, 53 AD3d567, 567 [2008]; Vitale vLevine, 44 AD3d 935, 936 [2007]). " 'This is not to say that an emergencyautomatically absolves one from liability for his [or her] conduct. The standard then stillremains that of a reasonable [person] under the given circumstances, except that thecircumstances have changed' " (Marks v Robb, 90 AD3d at 864, quotingFerrer v Harris, 55 NY2d 285, 293 [1982]; see Williams v City of New York, 88 AD3d 989, 990[2011]; Pawlukiewicz v Boisson, 275 AD2d 446, 447 [2000]). " 'Both theexistence of an emergency and the reasonableness of a party's response thereto willordinarily present questions of fact' " (Marks v Robb, 90 AD3d at 864, quotingWilliams v City of New York, 88 AD3d at 990).
In support of their motion, excluding the excerpt from the injured plaintiff'sdeposition and the unsworn police report, the defendants nevertheless established, primafacie, that Marte was faced with an emergency situation, not of her own making, leavingher with only a moment to react. According to Marte's deposition testimony, immediatelyprior to the accident, several of the children she was supervising were crossing the street,with a "walk" light, and she was standing in the middle of the street holding a stop sign,as the children crossed behind her. All other cyclists in the roadway stopped at theintersection, except for the injured plaintiff, who showed no signs of stopping. Fearingfor the safety of the young children, Marte moved her body between the injuredplaintiff's path and the children. Marte testified that she could not simply stand in front ofhim because he was going too fast and would run over her and the children. As theinjured plaintiff quickly approached, she pushed him away from the children, whichcaused the injured plaintiff to fall to the ground. Under these circumstances, thedefendants established their prima facie entitlement to judgment as a matter of law.
In opposition, however, through the injured plaintiff's deposition testimony, whichwas admitted in proper form, the plaintiffs raised a triable issue of fact as to theapplicability of the emergency doctrine. According to the injured plaintiff, as heapproached the intersection on his bicycle, he slowed for the stop light. Once he nearedthe stop line, he either came to a complete stop or was "just about at a complete stop,"when Marte abruptly "jumped in front of" his bicycle and, unprovoked, pushed him over.Contrary to the Supreme Court's determination, the injured plaintiff's depositiontestimony raised a triable issue of fact. "[A] motion for summary judgment should not begranted where the facts are in dispute, where conflicting inferences may be drawn fromthe evidence, or where there are issues of credibility" (LeBlanc v Skinner, 103 AD3d202, 212 [2012] [internal quotation marks omitted]). On this record, with the facts indispute and the credibility of the parties sharply at issue, the Supreme Court should havedenied the defendants' motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the plaintiffs' remaining contention.Dillon, J.P., Angiolillo, Chambers and Hinds-Radix, JJ., concur. [Prior Case History:37 Misc 3d 1216(A), 2012 NY Slip Op 52060(U).]