Opinion
2013-05-3
Randall J. LYONS, Plaintiff–Respondent, v. Keith A. ZEMAN, Defendant–Appellant, et al., Defendants.
Law Offices of Destin C. Santacrose, Buffalo (Destin C. Santacrose of Counsel), for Defendant–Appellant. Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of Counsel), for Plaintiff–Respondent.
Law Offices of Destin C. Santacrose, Buffalo (Destin C. Santacrose of Counsel), for Defendant–Appellant. Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action to recover damages for injuries he sustained while he was a passenger in a vehicle that was rear-ended by a vehicle operated by Keith A. Zeman (defendant). We conclude that Supreme Court properly denied defendant's cross motion for summary judgment dismissing the amended complaint and all cross claims against him.
“A rear-end collision with a vehicle that is stopped or is in the process of stopping ‘creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” ( Rosario v. Swiatkowski, 101 A.D.3d 1609, 1609, 956 N.Y.S.2d 734;see Roll v. Gavitt, 77 A.D.3d 1412, 1413, 910 N.Y.S.2d 330). We agree with plaintiff that defendant failed to establish as a matter of law that the accident was the result of unanticipated brake failure, a nonnegligent explanation alleged by defendant in support of his cross motion ( see Baldwin v. Wilkins, 11 A.D.3d 917, 918, 784 N.Y.S.2d 747). “Where, as here, ... defendant[ ] intend[s] ‘to lay the blame for the accident on brake failure, it [is] incumbent upon [him] to show that the problem with the brakes was unanticipated, and that [he] had exercised reasonable care to keep them in good working order’ ” ( Suitor v. Boivin, 219 A.D.2d 799, 800, 631 N.Y.S.2d 960; see Hubert v. Tripaldi, 307 A.D.2d 692, 694, 763 N.Y.S.2d 165;Schuster v. Amboy Bus Co., 267 A.D.2d 448, 448–449, 700 N.Y.S.2d 484). Defendant's own deposition testimony suggested that he refused a recent recommendation to have his brake lines fully replaced. Moreover, there are issues of fact whether the allegedly faulty brake repair performed two months before the accident was the sole proximate cause of the accident, as contended by defendant.
Contrary to defendant's further contention, he failed to meet his burden of establishing a nonnegligent explanation for the accident based on the emergency doctrine. The doctrine “ ‘recognizes that 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’ ..., provided the actor has not created the emergency” ( Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36;see Lifson v. City of Syracuse, 17 N.Y.3d 492, 497, 934 N.Y.S.2d 38, 958 N.E.2d 72). “The existence of an emergency and the reasonableness of a driver's response thereto generally constitute issues of fact” ( Dalton v. Lucas, 96 A.D.3d 1648, 1649, 947 N.Y.S.2d 285;see Patterson v. Central N.Y. Regional Transp. Auth. [CNYRTA], 94 A.D.3d 1565, 1566, 943 N.Y.S.2d 369,lv. denied19 N.Y.3d 815, 2012 WL 5258842;Williams v. City of New York, 88 A.D.3d 989, 990, 931 N.Y.S.2d 656). Here, even assuming, arguendo, that defendant established the existence of an emergency arising from the failure of his brakes, we conclude that there is an issue of fact whether his actions in response to that emergency were reasonable ( see generally Dalton, 96 A.D.3d at 1649–1650, 947 N.Y.S.2d 285;Heye v. Smith, 30 A.D.3d 991, 992, 817 N.Y.S.2d 471).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.