Opinion
No. 2680 Index No. 808307/21 Case No. 2024-02072
10-03-2024
Thomas P. Cox, Jr., Plaintiff-Respondent. v. Seniorcare Emergency Medical Services, Inc., et al., Defendants-Appellants,
Gallo Vitucci Klar LLP, New York (Monica Bonilla Romero of counsel), for appellants. Rosner Russo Shahabian PLLC, Farmingdale (Evelyn F. Sohi of counsel), for respondent.
Gallo Vitucci Klar LLP, New York (Monica Bonilla Romero of counsel), for appellants.
Rosner Russo Shahabian PLLC, Farmingdale (Evelyn F. Sohi of counsel), for respondent.
Before: Kern, J.P., Oing, Kapnick, Kennedy, Shulman, JJ.
Order, Supreme Court, Bronx County (Patsy Gouldborne, J.), entered on or about March 22, 2024, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
This action for personal injuries arises from a motor vehicle accident. Plaintiff was in the process of making an illegal U-turn when defendant Leonard Marquez, who was driving a vehicle belonging to defendant SeniorCare Emergency Medical Services, collided with plaintiff's car. Marquez conceded that immediately before the collision, he was driving over the speed limit.
The emergency doctrine prevents a finding of negligence against a driver confronted by a sudden and unexpected situation that leaves little time for thought, deliberation, or consideration. However, for the doctrine to apply, the driver's actions must have been reasonably prudent under emergent circumstances, and the driver must not have created or contributed to the emergency (Weston v Castro, 138 A.D.3d 517, 518 [1st Dept 2016]).
Defendants did not establish their entitlement to summary judgment, as the record presents triable issues of fact as to whether they may rely on the emergency doctrine (see Stewart v Ellison, 28 A.D.3d 252, 254 [1st Dept 2006]). Defendants failed to make a prima facie showing that plaintiff's maneuver on the highway was the sole proximate cause of the collision and that Marquez was free from negligence as a matter of law (see Renwick v Mitchell, 221 A.D.3d 514, 514 [1st Dept 2023]). Given the evidence showing that Marquez was driving over the speed limit, and given his contradictory testimony regarding the position of plaintiff's car on the shoulder of the highway, the record does not eliminate the possibility that his actions may have contributed to the collision (see Weston, 138 A.D.3d at 518).