Opinion
04-24-2024
Marco Pineda HERNANDEZ, etc., appellant, v. Jose A. FLORES, et al., respondents.
Donald Leo & Associates, P.C. (John F. Clennan, Ronkonkoma, NY, of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Sasha R. Grandison of counsel), for respondent.
Donald Leo & Associates, P.C. (John F. Clennan, Ronkonkoma, NY, of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Sasha R. Grandison of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.) dated January 4, 2022. The order granted the defendants’ motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On September 27, 2017, the plaintiff allegedly was injured when he entered the street and was struck by a vehicle operated by the defendant Jose A. Flores and owned by the defendant SLR Industries, Inc. The plaintiff commenced this action against the defendants to recover damages for personal injuries. Thereafter, the defendants moved for summary judgment dismissing the complaint. In an order dated January 4, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.
[1–4] "A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" (Boulos v. Lerner-Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 [2015]; see Wiessner v. Phillips, 201 A.D.3d 776, 777, 156 N.Y.S.3d 914 [2022]). "A driver is bound to see what is there to be seen with the proper use of his [or her] senses" (Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317 [2010]; see Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92 [2019]). "The emergency doctrine provides that "when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context’ " (Fergile v. Payne, 202 A.D.3d 928, 930, 163 N.Y.S.3d 216 [2022], quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991]). "Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact (see Makagon v. Toyota Motor Credit Corp., 23 A.D.3d 443, 444, 808 N.Y.S.2d 120 [2005]), those issues ‘may in appropriate circumstances be determined as a matter of law’ " (Vitale v. Levine, 44 A.D.3d 935, 936, 844 N.Y.S.2d 105 [2007], quoting Bello v. Transit Auth. of N.Y. City, 12 A.D.3d 58, 60, 783 N.Y.S.2d 648 [2004]).
[5] Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the plaintiff ran into the street from behind a parked car and made contact with the defendants’ vehicle, leaving Flores unable to avoid contact with the plaintiff (see Rosner v. Srulovic, 201 A.D.3d 980, 157 N.Y.S.3d 769 [2022]; King v. Perez, 160 A.D.3d 708, 708-709, 71 N.Y.S.3d 358 [2018]; Sheppeard v. Murci, 306 A.D.2d 268, 269, 761 N.Y.S.2d 244 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.
BARROS, J.P., CHAMBERS, WOOTEN and WAN, JJ., concur.