Opinion
2011-12-20
Oneka MARKS, respondent, v. John J. ROBB, et al., defendants,Kevin J. Goding, appellant.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for appellant. Bradley Gillam, Melville, N.Y., for respondent.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for appellant. Bradley Gillam, Melville, N.Y., for respondent.
WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendant Kevin J. Goding appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 4, 2011, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This action concerns an accident involving four motor vehicles which occurred at an intersection in Lynbrook. The plaintiff alleged that his vehicle was struck by a vehicle operated by the defendant Esther G. Urquilla, propelling the plaintiff's vehicle across several lanes of traffic into a vehicle operated by the defendant Kevin J. Goding (hereinafter the appellant) which was traveling in the opposite direction.
The appellant moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that he was faced with a sudden and unforeseen emergency situation, not of his own making, and that he acted reasonably under the circumstances. In an order entered March 4, 2011, the Supreme Court, among other things, denied the appellant's motion. We affirm the order insofar as appealed from.
“ ‘Under the emergency doctrine, 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’ ” ( Koenig v. Lee, 53 A.D.3d 567, 567, 862 N.Y.S.2d 373, quoting Vitale v. Levine, 44 A.D.3d 935, 936, 844 N.Y.S.2d 105 [internal quotation marks omitted] ). “This is not to say that an emergency automatically absolves one from liability for his conduct. The standard then still remains that of a reasonable man under the given circumstances, except that the circumstances have changed” ( Ferrer v. Harris, 55 N.Y.2d 285, 293, 449 N.Y.S.2d 162, 434 N.E.2d 231; see Williams v. City of New York, 88 A.D.3d 989, 931 N.Y.S.2d 656; Pawlukiewicz v. Boisson, 275 A.D.2d 446, 447, 712 N.Y.S.2d 634). “Both the existence of an emergency and the reasonableness of a party's response thereto will ordinarily present questions of fact” ( Williams v. City of New York, 88 A.D.3d at 990, 931 N.Y.S.2d 656).
Here, the appellant failed to establish his prima facie entitlement to judgment as a matter of law. The appellant failed to annex all of the pleadings to his motion as required by statute ( see CPLR 3212[b]; see also Roach v. AVR Realty Co., LLC, 41 A.D.3d 821, 825, 839 N.Y.S.2d 173; Matsyuk v. Konkalipos, 35 A.D.3d 675, 824 N.Y.S.2d 918; Hamilton v. City of New York, 262 A.D.2d 283, 691 N.Y.S.2d 108). Moreover, none of the deposition transcripts submitted by the appellant was signed, and those transcripts did not contain a proper certification as required by CPLR 3116(b). Furthermore, there was no proof that the deposition transcripts of the plaintiff, Urquilla, or the defendant John J. Robb were forwarded to the respective witnesses for review pursuant to CPLR 3116(a). Accordingly, none of the transcripts was in admissible form ( see CPLR 3116; see also Moffett v. Gerardi, 75 A.D.3d 496, 904 N.Y.S.2d 757; Marmer v. IF USA Express, Inc., 73 A.D.3d 868, 899 N.Y.S.2d 884; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 850 N.Y.S.2d 201; see generally Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554).
The appellant's failure to make a prima facie showing, with evidence in admissible form, that an emergency situation arose or that his response to such an emergency was reasonable and prudent under the circumstances, necessitated the denial of his motion regardless of the sufficiency of the opposing papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Goodyear v. Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 A.D.3d 551, 552, 927 N.Y.S.2d 373; Post v. County of Suffolk, 80 A.D.3d 682, 915 N.Y.S.2d 124).
The parties' remaining contentions either are without merit or need not be considered in light of our determination.