Opinion
2018–07025 Index No. 61902/14
06-19-2019
Daniel J. MACMONIGLE, Appellant, v. Michael W. DELBUONO, Defendant-Respondent; Joseph P. Barbato, Nonparty-Respondent.
The Schlemmer Firm, LLC, New York, N.Y. (Paul N. Schlemmer of counsel), for appellant. Buratti, Rothenberg & Burns, East Meadow, N.Y. (Scott R. Dinstell of counsel), for defendant-respondent.
The Schlemmer Firm, LLC, New York, N.Y. (Paul N. Schlemmer of counsel), for appellant.
Buratti, Rothenberg & Burns, East Meadow, N.Y. (Scott R. Dinstell of counsel), for defendant-respondent.
MARK C. DILLON, J.P. RUTH C. BALKIN LEONARD B. AUSTIN BETSY BARROS, JJ.
DECISION & ORDERORDERED that the order is affirmed, with costs.
On May 27, 2012, at approximately 3:00 a.m., a vehicle driven by nonparty Joseph Barbato, who was intoxicated and may have fallen asleep while driving, swerved across a double-yellow line and into a vehicle that was being driven in the opposite direction by the defendant. The plaintiff, who was seated in the passenger seat of the defendant's vehicle, suffered injuries as a result of this accident.
The plaintiff commenced this action against the defendant, alleging negligence. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.The defendant met his prima facie burden of establishing that he was entitled to judgment as a matter of law. A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic. Such an event constitutes a classic emergency situation, thus implicating the emergency doctrine (see Gajjar v. Shah, 31 A.D.3d 377, 378, 817 N.Y.S.2d 653 ; Cheung v. Dominican Convent of Our Lady of Rosary, 22 A.D.3d 450, 451, 802 N.Y.S.2d 208 ).
In opposition, the plaintiff failed to present sufficient evidence to raise a triable issue of fact as to whether the defendant had operated his vehicle in a negligent manner (see Gajjar v. Shah, 31 A.D.3d at 377–378, 817 N.Y.S.2d 653 ; compare Bentley v. Moore, 251 A.D.2d 612, 613, 675 N.Y.S.2d 108, with Cahoon v. Frechette, 86 A.D.3d 774, 776, 927 N.Y.S.2d 689 ).
The plaintiff's remaining contentions are either not properly before this Court or without merit.
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
DILLON, J.P., BALKIN, AUSTIN and BARROS, JJ., concur.