Opinion
No. 34539/08.
2010-08-24
Bing Yi ZHOU, as Parent an Natural Guardian of Simon Zhou and Bing Yi Zhou Individually, Plaintiffs, v. Giovanni CAROLLO and Agata Badali, Defendants.
Morris Duffy Alonso & Faley, New York, for the defendants. Caesar & Napoli, New York, for plaintiffs.
Morris Duffy Alonso & Faley, New York, for the defendants. Caesar & Napoli, New York, for plaintiffs.
FRANCOIS A. RIVERA, J.
By notice of motion filed on May 6, 2010, under sequence number two, defendants Giovanni Carollo (Carollo) and Agata Badali (Badali) jointly move pursuant to CPLR § 3212 for an order dismissing the complaint on the basis that they are not liable for the occurrence which caused the plaintiffs' injuries. Plaintiffs oppose the motion.
BACKGROUND
On December 29, 2008, plaintiffs commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. In June of 2009, Carollo and Badali joined issue. Their answer did not plead the emergency doctrine as an affirmative defense although it did include sixteen other affirmative defenses.
Plaintiffs' complaint alleges the following salient facts. On April 23, 2008, Simon Zhou, an infant, was struck by a vehicle operated by Carollo and owned by Badali in the vicinity of 77th Street and New Utrecht Avenue, Brooklyn, New York. The collision was caused by Carollo's negligent operation of his vehicle and resulted in serious physical and derivative injuries to the plaintiffs.
MOTION PAPERS
The defendants' motion papers consist of a memorandum of law, an affirmation of their counsel and eight annexed exhibits labeled A though H. Exhibit A is a copy of police accident report (MV–104) of the underlying collision. Exhibit B is the instant summons, verified complaint and the defendants' answer. Exhibit C is the note of issue, a and a copy of the preliminary conference order dated June 5, 2009; and the central compliance order dated November 24, 2009. Exhibit D is the court's order dated April 9, 2010 which extended defendants' time to file a summary judgment motion 30 days from the date of the order. Exhibit E is the court's order dated October 13, 2009, which found that the infant, Simon Zhu, could not be deposed because he did not comprehend the nature of an oath. Exhibit F is the transcript of defendant Carollo's testimony taken at a deposition conducted on December 2, 2009. Exhibit G is the transcript of plaintiff Bing Yi Zhou's testimony taken at a deposition conducted on December 2, 2009. Exhibit H is the certified but unsigned transcript of non-party witness Ken Zhou's testimony taken at a deposition conducted on April 6, 2010.
Plaintiffs oppose the summary judgment motion with an affirmation of their counsel and eight annexed exhibits labeled A through H. Exhibit A is a copy of police accident report (MV–104) of the underlying collision. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendants' answer. Exhibit D is a copy of plaintiffs' verified bill of particulars. Exhibit E is the court's order dated October 13, 2009, which found that the infant, Simon Zhu, could not be deposed because he did not comprehend the nature of an oath. Exhibit F is the transcript of plaintiff Bing Yi Zhou's testimony taken at a deposition conducted on December 2, 2009. Exhibit G is the transcript of defendant Carollo's testimony taken at a deposition conducted on December 2, 2009. Exhibit H is the certified but unsigned transcript of non-party witness Ken Zhou's testimony taken at a deposition conducted on April 6, 2010.
Defendants replied to plaintiffs' opposition papers with an affirmation of their counsel.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ).The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v. Citibank, 100 N.Y.2d 72 [2003]. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 N.Y.2d 923 [1993] ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The defendants invoke the emergency doctrine by asserting that Carollo was faced with an emergency situation when Simon Zhou, who was five years old at the time, suddenly came into the path of Carollo's moving vehicle.
Although the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact, in appropriate circumstances these issues may be determined as a matter of law (Alamo v. McDaniel, 44 A.D.3d 149, 841 N.Y.S.2d 477 [1st Dept.,2007] ). The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection may not be negligent if their actions are reasonable and prudent in the context of the emergency (Franco v. G. Michael Cab Corp., 71 A.D.3d 1082, 898 N.Y.S.2d 186 [2nd Dept.,2010] ). Faced with an emergency situation, a party “cannot be expected to adhere to the same accuracy of judgment as someone who has had the full opportunity to reflect” (Alamo v. McDaniel, 44 A.D.3d 149 [1 Dept., 2007] ).
The defendants' motion papers rely exclusively on defendant Carollo's deposition testimony to explain how Carollo's motor vehicle came into contact with Simon Zhou. It is therefore, the only sworn evidence supporting defendants' invocation of the emergency doctrine. However, the defendants failed to plead the emergency doctrine as an affirmative defense in their answer, and the perceptions of Carollo leading up to his collision with the infant are known only to him. As a result, the instant motion raises new issues of fact not appearing on the face of the pleadings and results in unfair surprise to the plaintiff (Franco v. G. Michael Cab Corp., 71 A.D.3d 1082, 898 N.Y.S.2d 186 [2nd Dept.2010] ).
The court does note that plaintiff did not raise defendants' failure to plead the emergency doctrine in its opposition to the motion. Rather, the plaintiffs attempt to address the merits of its use by pointing out numerous inconsistencies in Carollo's deposition testimony about the collision. The inconsistencies would probably raise an issue of fact as to how the collision occurred. However, under these circumstances, the invoking of the emergency doctrine would be unfair ( id.).
Therefore, the defendants cannot properly rely on the emergency doctrine in support of their motion and the motion is denied.
The foregoing constitutes the decision and order of this court.