Opinion
2018–03056 Index No. 611695/15
07-17-2019
Alyssa FIGGIANI, Appellant, v. Patrick CROCIATA, et al., Respondents.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellant. Charles F. Harms, Jr., Garden City, N.Y. (James R. Pieret of counsel), for respondents.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellant.
Charles F. Harms, Jr., Garden City, N.Y. (James R. Pieret of counsel), for respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action to recover damages for injuries allegedly sustained by her when the vehicle she was operating collided with a dump truck owned by the defendant Zorn Landscaping, Inc., and operated by the defendant Patrick Crociata on Route 112 at the intersection of Commercial Boulevard in Medford. After a jury trial, a verdict was returned in favor of the defendants on the issue of liability. A judgment was entered upon the verdict in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.
We agree with the Supreme Court's determination to instruct the jury on the emergency doctrine. "If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed" ( Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 ; see Pelletier v. Lahm, 24 N.Y.3d 966, 968, 994 N.Y.S.2d 565, 19 N.E.3d 491 ; Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110 ).
Here, viewing the testimony in the light most favorable to the defendants, there is a "reasonable view of the evidence supporting the occurrence of a ‘qualifying emergency’ " ( Caristo v. Sanzone, 96 N.Y.2d 172, 175, 726 N.Y.S.2d 334, 750 N.E.2d 36, quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d at 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 ; see Pelletier v. Lahm, 111 A.D.3d 807, 808–809, 975 N.Y.S.2d 135, affd 24 N.Y.3d 966, 994 N.Y.S.2d 565, 19 N.E.3d 491 ). Both the plaintiff and Crociata testified that the plaintiff drove her vehicle out of a gas station and onto the single-lane, southbound roadway of Route 112. The plaintiff's vehicle was behind a Saturn vehicle which was stopped at a green traffic light at the intersection with Commercial Boulevard. Crociata testified that he was driving a dump truck weighing at least 24,000 pounds south on Route 112 and, when he was approximately 75 feet behind the Saturn, the plaintiff's vehicle suddenly, rapidly, and unexpectedly "darted" out of the gas station and onto the roadway behind the Saturn. According to Crociata, he was unable to stop safely, so he pulled onto the shoulder to avoid a collision with the plaintiff's vehicle and the plaintiff's vehicle then drove into the side of his dump truck. According to the plaintiff, when the Saturn failed to proceed at the intersection, she attempted to pull her vehicle onto the shoulder, but she did not look to the right before she moved because she did not expect anyone to be driving on the shoulder. The dump truck and the plaintiff's vehicle then collided.
Under these circumstances, there is a reasonable view of the evidence that the plaintiff's act of driving her vehicle out of the gas station onto the roadway behind the Saturn and then abruptly onto the shoulder was a sudden and unexpected circumstance that confronted Crociata and was not of his own making (see Pelletier v. Lahm, 24 N.Y.3d at 968, 994 N.Y.S.2d 565, 19 N.E.3d 491 ; Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d at 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110 ; Rivera v. New York City Tr. Auth., 77 N.Y.2d at 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 ; Sing–Lam Ng v. Beatty, 300 A.D.2d 648, 648–649, 752 N.Y.S.2d 706 ; Barath v. Marron, 255 A.D.2d 280, 281, 684 N.Y.S.2d 553 ). It was, therefore, proper to deliver a jury charge on the emergency doctrine (see Pelletier v. Lahm, 24 N.Y.3d at 968, 994 N.Y.S.2d 565, 19 N.E.3d 491 ; Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d at 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110 ; Rivera v. New York City Tr. Auth., 77 N.Y.2d at 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 ; Sing–Lam Ng v. Beatty, 300 A.D.2d at 649, 752 N.Y.S.2d 706 ).
RIVERA, J.P., DILLON, AUSTIN and HINDS–RADIX, JJ., concur.