| Garcia v Stewart |
| 2014 NY Slip Op 06172 [120 AD3d 1298] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Francia Garcia, Respondent, v LorraineStewart, Respondent, and Thomas Alfano, Jr., et al.,Appellants. |
Cuomo LLC, New York, N.Y. (Sherri A. Jayson of counsel), for appellants.
Ruth E. Bernstein, New York, N.Y., for plaintiff-respondent.
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel),for defendant-respondent.
In an action to recover damages for personal injuries, the defendants Thomas Alfano,Jr., and Thomas Alfano, Sr., appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Nassau County (Sher, J.), dated July 25, 2013, as denied that branchof their motion which was for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, and the appellants' motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against them is granted.
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"(Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; see Koenig v Lee, 53 AD3d567 [2008]; Vitale vLevine, 44 AD3d 935, 936 [2007]).
Here, the plaintiff's vehicle was traveling northbound on Rockaway Avenue near itsintersection with Fifth Street in the Village of Valley Stream when the defendantLorraine Stewart, whose vehicle was traveling southbound on Rockaway Avenue,admittedly fell asleep behind the wheel and crossed over the double-yellow line into thenorthbound lane and into the plaintiff's vehicle. The uncontroverted evidencedemonstrates that as a result of the force of the impact, the plaintiff's vehicle spunbackward toward the vehicle owned by the defendant Thomas Alfano, Sr., and operatedby the defendant Thomas Alfano, Jr. (together hereinafter the Alfano defendants), which,immediately prior to the collision, had been traveling directly behind the plaintiff'svehicle. Despite Thomas Alfano, Jr.'s efforts to avoid the collision by applying his brakesand attempting to veer to the right, his vehicle collided with the rear of the plaintiff'svehicle approximately one to two seconds after the initial impact.
[*2] The Alfano defendants made a prima facie showing oftheir entitlement to judgment as a matter of law by demonstrating that Thomas Alfano,Jr., was faced with an emergency not of his own making, which left him with onlyseconds to react and virtually no opportunity to avoid a collision (see Quinones v Altman, 116AD3d 686, 686 [2014]; Parastatidis v Holbrook Rental Ctr., Inc., 95 AD3d 975,976-977 [2012]; Koenig v Lee, 53 AD3d at 568).
In opposition, neither the plaintiff nor Stewart raised a triable issue of fact as towhether Thomas Alfano, Jr.'s actions were reasonable and prudent under thecircumstances. While the plaintiff contends that Thomas Alfano, Jr.'s proffered testimonyand averments are incredible, we note that " '[i]t is not the court's function on amotion for summary judgment to assess credibility' " (Silva v FC Beekman Assoc.,LLC, 92 AD3d 754, 756 [2012], quoting Ferrante v American LungAssn., 90 NY2d 623, 631 [1997]; see A Dan Jiang v Jin-Liang Liu, 97 AD3d 707 [2012]).Neither the plaintiff nor Stewart offered any testimony or evidence to contradict ThomasAlfano, Jr.'s consistent account of the accident (see Rankel v Saccardo, 100 AD3d 613, 613 [2012]; Vainer v DiSalvo, 79 AD3d1023, 1023 [2010]; cf.Tringali v Sieber, 115 AD3d 934 [2014]; Martin v Cartledge, 102 AD3d 841 [2013]). Further, theplaintiff and Stewart offered nothing more than mere speculation and surmise as to howThomas Alfano, Jr., could have avoided the accident (see Quinones v Altman,116 AD3d at 686; Kenney vCounty of Nassau, 93 AD3d 694, 696 [2012]; Koenig v Lee, 53 AD3dat 568).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the Supreme Court should have granted that branch of the Alfanodefendants' motion which was for summary judgment dismissing the complaint and allcross claims insofar as asserted against them. Skelos, J.P., Dickerson, Cohen and Duffy,JJ., concur.