Opinion
103220/05.
Decided on October 4, 2007.
Upon the foregoing papers, the motion (No. 1489) for summary judgment of defendants, Julio Montalvo and the Terry Tom Service Station, Inc. is granted, as is plaintiffs' cross-motion (No. 2077) for summary judgment on the issue of the liability as against the of remaining defendants, Christopher Mandato, Frank Mandato and Louisa Mandato (hereafter "Mandato").
This personal injury action was brought to recover damages for injuries allegedly sustained as a result of a two vehicle accident which occurred on November 21, 2001. It is undisputed that on the date in question, defendant Christopher Mandato lost control of his vehicle at a point where the roadway curved; crossed over the double yellow line; and struck the moving defendants' tow truck, which was in its proper lane of travel ( see Mandato's EBT, Movants' Exhibit "D" p 14, Montalvo's EBT Exhibit "E" p 23). Defendant Julio Montalvo was the operator of the tow truck, which was owned by his employer, codefendant Terry Tom Service Station. Daniel Sullivan (hereinafter "plaintiff") was a passenger in the vehicle owned by defendants Frank and Louise Mandato and operated by defendant Christopher Mandato.
In support of the motion to dismiss, defendant Montalvo asserts that he was traveling northbound uphill on Todt Hill Road in Staten Island when he first observed Mandato's car coming downhill at him, 25 to 30 feet away. The impact occurred approximately one second later, entirely within the northbound lane of Todt Hill Road ( see Montalvo's EBT, Exhibit "E" pp 24, 25, 32). According to the moving defendants, they bear no responsibility for the ensuing collision, as a driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic ( see Eichenwald v Chaudhry , 17 AD3d 403; Dormena v Wallace, 282 AD2d 425, 427). "Indeed, such a scenario presents an emergency situation, and the actions of the driver presented with [such a] situation must be judged in that context" ( Dormena v Wallace, supra at 427),
Here, defendant Montalvo has demonstrated his entitlement to judgment as a matter of law by submitting a copy Christopher Mandato's deposition testimony indicating that he lost control of his vehicle and crossed over the double yellow line into the path of oncoming traffic, where it collided with the truck operated by Montalvo. Since the collision admittedly occurred within seconds of the Mandato vehicle becoming visible to the tow truck driver, the emergency doctrine applies, and any alleged failure on the part of Montalvo to exercise his best judgment in response to the emergency situation will not be considered ( see Lee v Ratz , 19 AD3d 552; Cortes v Edoo, 249 AD2d 501).
In opposition, the objectants have failed to raise a triable issue of fact as to whether Montalvo's reaction to the emergency was reasonable, and/or whether any negligence on his part before the crossing-over contributed to causing the emergency ( see Stoebe v Norton, 278 AD2d 484, 485). Finally, the Court does not perceive any merit to the objections raised as to the sufficiency of the deposition transcripts submitted to it.
Consonant with the foregoing, plaintiffs' cross motion for summary judgment on the issue of liability must be granted against the Mandato defendants, since the uncontroverted crossing of a double yellow line constitutes negligence as a matter of law ( see Marsicano v Dealer Stor. Corp. , 8 AD3d 451).
Finally, the Mandatos' objection to the timeliness of plaintiffs' cross motion is without merit. A technically untimely cross motion for summary judgment may be considered by the Court where, as here, a timely motion for summary judgment was made on nearly identical grounds ( see Bressingham v Jamaica Hosp. Med. Ctr. , 17 AD3d 496). Thus, the nearly identical issues raised in the motion and cross motion are properly before the Court ( id.).
Accordingly, it is hereby
ORDERED that the motion for summary judgment of defendants Julio Montalvo and Terry Tom Service Station, Inc. is granted and the complaint as against said defendants is severed and dismissed; and it is further
ORDERED that plaintiffs' cross motion for summary judgment against the remaining defendants Christopher Mandato, Frank Mandato and Louisa Mandato is granted on the issue of liability only; and it is further
ORDERED that the matter be set down for trial on the issue of damages upon the filing of the necessary papers and the payment of any required fees; and it is further
ORDERED that the Clerk shall enter judgment accordingly