Opinion
2012-12-13
Jimmel T. COPELAND, Respondent, v. Eric J. BOLTON, Defendant, and Jared D. Zitwer et al., Appellants.
Law Office of Theresa J. Puleo, Albany (Murry S. Brower of counsel), for appellants. Edward P. Ryan, Albany (John T. Casey, Troy, of counsel), for respondent.
Law Office of Theresa J. Puleo, Albany (Murry S. Brower of counsel), for appellants. Edward P. Ryan, Albany (John T. Casey, Troy, of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.
STEIN, J.
Appeal from an order of the Supreme Court (McNamara, J.), entered October 3, 2011 in Albany County, which denied a motion by defendants Jared D. Zitwer and Susan E. Zitwer for summary judgment dismissing, among other things, the complaint against them.
In the early morning hours of New Year's Day in 2009, plaintiff was walking north along the white fog line on U.S. Route 9 near the intersection of Route 9 and Plant Road in the Town of Halfmoon, Saratoga County. In that location, Route 9 consists of two traveling lanes in each direction, with a turning lane separating the four lanes in the middle. When he attempted to cross the northbound lanes of Route 9, plaintiff was struck by a vehicle driven by defendant Eric J. Bolton in the furthest right-hand northbound lane. At the point of impact, plaintiff was in the middle or left-hand side of that lane. He landed in the adjacent northbound passing lane, where he was subsequently run over by a car driven by defendant Jared D. Zitwer (hereinafter defendant), which defendant owned with his mother, defendant Susan E. Zitwer (hereinafter collectively referred to as defendants).
Following commencement of this action and joinder of issue, defendants moved for summary judgment dismissing, as pertinent here, the complaint against them on the basis that defendant was faced with an emergency situation not of his making and acted reasonably in view of the circumstances. Finding that defendants failed to meet their threshold burden of demonstrating their entitlement to judgment as a matter of law, Supreme Court denied the motion. Defendants now appeal and we affirm.
The record in this matter indicates that the action against Bolton has been settled.
Defendants argue that they are entitled to dismissal of the complaint based on the emergency doctrine, which relieves a driver of liability when he or she is confronted with “a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration” ( Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001] [internal quotation marks and citation omitted]; accord Hubbard v. County of Madison, 93 A.D.3d 939, 940, 939 N.Y.S.2d 619 [2012],lv. denied19 N.Y.3d 805, 2012 WL 2036586 [2012] ). However, “the [driver] may still be found to be negligent if, notwithstanding the emergency, the acts are found to be unreasonable” ( Ferrer v. Harris, 55 N.Y.2d 285, 293, 449 N.Y.S.2d 162, 434 N.E.2d 231 [1982] [internal quotation marks and citation omitted]; see Hubbard v. County of Madison, 93 A.D.3d at 940, 939 N.Y.S.2d 619;Williamson v. Ringuett, 85 A.D.3d 1427, 1428, 925 N.Y.S.2d 716 [2011] ). With some limited exceptions, the issue of whether a driver's actions in an emergency situation are reasonable is ordinarily a question of fact ( see Hubbard v. County of Madison, 93 A.D.3d at 940, 939 N.Y.S.2d 619;Cancellaro v. Shults, 68 A.D.3d 1234, 1236, 890 N.Y.S.2d 677 [2009],lv. denied14 N.Y.3d 706, 2010 WL 1235601 [2010];Burnell v. Huneau, 1 A.D.3d 758, 760, 767 N.Y.S.2d 163 [2003] ).
Here, defendants supported their motion with, among other things, defendant's deposition testimony and an affidavit of an accident reconstruction expert, George Ruotolo. Defendant testified that he had been traveling at the posted speed limit of 40 miles per hour, but had begun to slow down in anticipation of making a right turn onto Plant Road, when he observed Bolton suddenly maneuver his car to the side of the road, begin exiting his car and wave his arms. In response, defendant moved his vehicle to the left-hand lane of the two northbound lanes in order to give Bolton room. According to defendant, only a few seconds elapsed between the time that Bolton pulled over and when defendant felt the sensation of passing over something. Defendant testified that he did not realize that plaintiff was lying in the road until he pulled his vehicle over to the side and Bolton told him to call 911.
While there does not appear to be any dispute that the circumstances facing defendant constituted an emergency, we nonetheless conclude that defendants failed to demonstrate as a matter of law that defendant's response to the situation was reasonable. Ruotolo's conclusion that defendant “did not have the time to stop or swerve” around plaintiff was premised, in part, on his assumption that defendant was traveling at a speed of 45 miles per hour. However, Ruotolo's affidavit is devoid of any evidence to support such assumption, other than that he apparently believed that to be the speed limit in the area. Inasmuch as the factual basis of Ruotolo's opinion was without any evidentiary foundation, Supreme Court correctly determined that it had no probative value ( see Gray v. South Colonie Cent. School Dist., 64 A.D.3d 1125, 1128, 883 N.Y.S.2d 647 [2009] ). Without Ruotolo's opinion, defendants failed to meet their prima facie burden of demonstrating that defendant acted reasonably in view of the circumstances ( compare Cancellaro v. Shults, 68 A.D.3d at 1237, 890 N.Y.S.2d 677;Dearden v. Tompkins County, 6 A.D.3d 783, 785, 774 N.Y.S.2d 201 [2004] ). Thus, the burden never shifted to plaintiff to demonstratethe existence of a triable issue of fact, and Supreme Court properly denied defendants' motion, regardless of the sufficiency of plaintiff's opposing papers ( see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012];Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];Edick v. General Elec. Co., 98 A.D.3d 1217, 1218–1219, 951 N.Y.S.2d 251 [2012] ). Even if defendants did meet their threshold burden on their motion, when we view the evidence presented by both parties in the light most favorable to plaintiff ( see Vega v. Restani Constr. Corp., 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240;Secore v. Allen, 27 A.D.3d 825, 828–829, 811 N.Y.S.2d 170 [2006] ), we conclude that plaintiff demonstrated the existence of multiple issues of fact that prevent a determination, as a matter of law, that defendant acted reasonably in the face of the situation with which he was confronted.
We also note that Ruotolo's assumption was contrary to defendant's own testimony regarding both his rate of speed and the posted speed limit and to the investigation and conclusion of plaintiff's expert.
To the extent not specifically addressed herein, defendants' remaining contentions have been considered and found to be without merit.
ORDERED that the order is affirmed, with costs.