Opinion
22183/1999.
Decided on May 26, 2005.
Facts
This personal injury action arose out of a three-car automobile accident that occurred on January 3, 1999, on the Grand Central Parkway in Queens County. The plaintiffs were passengers in the second vehicle driven by defendant THOMAS SETTEL, (hereinafter "Settel"). Apparently, the first vehicle had spun into the guardrail, and its driver had gotten out of the vehicle, when defendant Settel lost control of his vehicle, operated in the same direction as vehicle one, struck the first vehicle, and was then in turn struck by the third vehicle. Defendants LEXINGTON LEASING CO., and THOMAS SETTEL, (collectively hereinafter known as "Settel"), move for summary judgment based upon the defense of the emergency doctrine, and based upon the plaintiffs' failure to meet the "serious injury" threshold under Insurance Law § 5102(d), and also move to strike the plaintiffs' note of issue and certificate of readiness for failure to produce one of the plaintiffs for an Independent Medical Examination.
Standard for Summary Judgment
On a motion for summary judgment, parties must lay bare their proofs in non-hearsay form ( Zuckerman v. City of New York, 49 NY2d 557, 562). It is axiomatic that "the party opposing the motion must submit sufficient evidence, in admissible form, to establish that there is a triable issue ( Zoldas v. Louise Cab Corp., 108 AD2d 378, 383 [1st Dept. 1985]) or to explain why a proper tender of proof is not being made ( Zuckerman v. City of New York, supra.)
Emergency Doctrine
The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance not of his or her own making, 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 held negligent if the actions taken are reasonable and prudent in the emergency context, even if it later appears that the actor made a wrong decision, provided the actor has not created the emergency ( see, Caristo v. Sanzone, 96 NY2d 172, 174; Rivera v. New York City Tr. Auth., 77 NY2d 322, 327; see also, Kuci v. Manhattan Bronx Surface Tr. Operating Auth., 88 NY2d 923; Pawlukiewicz v. Boisson, 275 AD2d 446 [2nd Dept. 2000]). The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances ( see, Bello v. Transit Auth., 12 AD3d 58, 60 [2nd Dept. 2004]; Amaro v. City of New York, 40 NY2d 30, 36). "This is not to say that an emergency automatically absolves one from liability for his conduct. The standard then still remains that of a reasonable man under the given circumstances, except that the circumstances have changed" ( Ferrer v. Harris, 55 NY2d 285, 293).
Although the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact, ( see, Morgan v. Ski Roundtop, 290 AD2d 618 [3rd Dept. 2002]; Cathey v. Gartner, 15 AD3d 435 [2nd Dept. 2005]; Takle v. NY City Transit Auth., 14 AD3d 608 [2nd Dept. 2005]; Tseytlina v. NY City Transit Auth., 12 AD3d 590 [2nd Dept. 2004), they may, in appropriate circumstances, be determined as a matter of law.
Courts have summarily absolved defendants of liability within the context of an emergency situation, where, for example, a defendant attempted to avoid two vehicles which were spinning out of control, ( see, Wenz v. Shafer, 293 AD2d 742 [2nd Dept. 2002]), where an emergency stop was made by a bus operator only after distressed and panicking passengers urgently told the driver that a man had left a bomb on the bus, ( see, Bello v. Transit Auth., 12 AD3d 58 [2nd Dept. 2004]), where a bus operator was forced to brake suddenly to avoid colliding with a vehicle that suddenly drove in front of the bus, ( see, Roviello v. Schoolman Transp. Sys., 10 AD3d 356 [2nd Dept. 2004]; Rivas v. Metropolitan Suburban Bus Auth., 203 AD2d 349 [2nd Dept. 1994]), where a vehicle crashed into the wall of a highway, and suddenly came to rest blocking two traffic lanes, including the defendant's ( see, Garcia v. Prado, 15 AD3d 347 [2nd Dept. 2005]), or where another vehicle suddenly crosses over into the defendant's lane, ( see, Guevara v. Zaharakis, 303 AD2d 555 [2nd Dept. 2003]).
In addition, it is well settled that, under the emergency doctrine, "a driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic" ( Huggins v. Figueroa, 305 AD2d 460, 461 [2nd Dept., 2003], citing Bentley v. Moore, 251 AD2d 612, 613). Thus, there is a plethora of appellate authority for the proposition that summary judgment lies in cases where the defendant reacts to avoid a car which suddenly crosses over into opposing traffic ( see, e.g., Lyons v. Rumpler, 254 AD2d 261 [2nd Dept. 1998]; Huggins v. Figueroa, 305 AD2d 460 [2nd Dept. 2003]; Eichenwald v. Chaudhry, 2005 NY App. Div. LEXIS 3888 [2nd Dept. 2005]; Foster v. Sanchez, 792 NYS2d 579 [2nd Dept. 2005]; Pawlukiewicz v. Boisson, supra; Stoebe v. Norton, 278 AD2d 484 [2nd Dept. 2000]; Coss v. Sunnydale Farms, Inc., 268 AD2d 499 [2nd Dept. 2000]; Turner v. Mongitore, 274 AD2d 512 [2nd Dept. 2000]).
By contrast, a situation in which the emergency is one of the defendant's own making, or caused by the defendant's own actions, will not be held to be a qualifying emergency for purposes of invoking the emergency doctrine. This occurs, for example, where the defendant fails to maintain a safe distance between his/her own vehicle and the vehicle ahead of him/her ( see, V.T.L. § 1129[a]; Burke v. Kreger Truck Renting Co., 272 AD2d 494 [2nd Dept. 2000]; Pappas v. Opitz, 262 AD2d 471 [2nd Dept. 1999]; Johnston v. El-Deiry, 230 AD2d 715 [2nd Dept. 1996]; Dawkins v. Craig, 216 AD2d 436 [2nd Dept. 1995]), where the defendant fails to be aware of potential hazards presented by traffic conditions, including stoppages caused by accidents up ahead, ( see, Cascio v. Metz, 305 AD2d 354, 355 [2nd Dept. 2003]), or where the defendant simply strikes a completely-stopped vehicle in the rear ( see, e.g., Campanella v. Moore, 266 AD2d 423, 424 [2nd Dept. 1999]; Bournazos v. Malfitano, 275 AD2d 437 [2nd Dept. 2000]).
Moreover, as a general proposition, weather and roadway conditions have been regarded as foreseeable and capable of being anticipated, and have, as a result, been held to be removed from the context of the emergency situation. The Court of Appeals, for example, has held that, when a defendant has an admitted knowledge of worsening weather conditions, where, at the time of the accident the temperature was well below freezing and it had been snowing, raining and hailing for at least two hours, the presence of ice and slippery road conditions at the location of the accident cannot be deemed a sudden, unforeseen, and unexpected emergency ( see, Caristo v. Sanzone, 96 NY2d 172, 175 [ Rosenblatt and Smith, JJ., dissenting]).
Appellate tribunals in this department have followed suit, applying the holding in Caristo v. Sanzone, supra, in a myriad of cases, holding that "[a]n emergency instruction should not be given where, as here, the defendant driver should reasonably have anticipated and been prepared to deal with the situation with which [he] was confronted" ( Muye v. Liben, 282 AD2d 661 [2nd Dept. 2001], citing Pincus v. Cohen, 198 AD2d 405, 406 [2nd Dept. 1993]; see also, Cascio v. Metz, 305 AD2d 354 [2nd Dept. 2003]; Lamuraglia v. NY City Transit Auth., 299 AD2d 321 [2nd Dept. 2002]). Thus, wet, slippery, or icy roadway conditions have been held not to be emergencies, since they should be anticipated and dealt with by defendant driver, ( see, Marsicano v. Dealer Storage Corp., 8 AD3d 451 [2nd Dept. 2004]; Bellantone v. Toddy Taxi, Inc., 307 AD2d 979 [2nd Dept. 2003]; Gadon v. Oliva, 294 AD2d 397 [2nd Dept. 2002]; Muye v. Liben, 282 AD2d 661 [2nd Dept. 2001]; Pincus v. Cohen, 198 AD2d 405 [2nd Dept. 1993]).
Applying the above foundation principles of law to the facts at bar mandates the conclusion that the within situation was not a qualifying emergency within the context of the emergency doctrine. Defendant Settel was aware of the existing weather conditions. He was traveling around a curve on slippery, icy weather conditions. He struck a stopped vehicle which was disabled, and whose driver had already exited the vehicle. He first saw the disabled vehicle when it was approximately three (3) car-lengths away. Moreover, the police accident report, which is admissible ( see, Guevara v. Zaharakis, supra), indicates that the defendant, by his own admission, ". . . lost control of [his] car and hit the taxi that was blocking part of my lane." Thus, defendant Settel has failed to establish, as a matter of law, through admissible evidence: (a) that the co-defendant's disabled vehicle suddenly spun into the path of his vehicle, leaving him little or no time to react ( see, Garcia v. Prado, supra), (b) that the emergency was not of his making, because he was free from negligence as a matter of law by maintaining a safe distance and speed given the then existing roadway and weather conditions (see, Caristo v. Sanzone, supra; Cascio v. Metz, supra), and (c) that the weather and roadway conditions were unanticipated and unforeseeable. Even were this court to find that this scenario, as alleged, constitutes a qualifying emergency situation, there are issues of fact as to the reasonableness of defendant Settel's actions under the attendant circumstances which preclude an award of summary judgment.
Accordingly, that branch of Settel's motion seeking summary judgment as to liability based upon the defense of the emergency doctrine is denied in all respects.
"Serious Injury" Threshold
Likewise, the defendants failed to make a prima facie showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d); see, Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955). Plaintiffs' Bill of Particulars alleges that plaintiff Alvaro Viera sustained injuries to the cervical and lumbosacral spine, head, right wrist and arm, plaintiff Janeth Viera allegedly sustained injuries to the cervical, thoracic, and lumbosacral spine and head, and plaintiff Nicole Cobo allegedly sustained injury to the cervical and lumbosacral spine. The defendants' single examining physician, neurologist Burton S. Diamond, M.D., concluded in his affirmed reports of his evaluation of plaintiffs Alvaro and Janeth Viera, dated May 25, 2004, that Alvaro had "cervical sprain, resolved," and that Janeth had "cervical and lumbar sprain, resolved," yet failed to set forth any objective tests which he conducted in order to justify those clinical findings ( see, Black v. Robinson, 305 AD2d 438 [2nd Dept. 2003]). Dr. Diamond also failed to set forth any findings with respect to the lumbar or cervical spine, head, or wrist ( see, Mendolia v. Harris, 791 NYS2d 654 [2nd Dept. 2005]; Black v. Robinson, supra; Zavala v. DeSantis, 1 AD3d 354 [2nd Dept. 2003]; Gamberg v. Romeo, 289 AD2d 525 [2nd Dept. 2001]), or to address all of the plaintiffs' alleged injuries with findings based upon objective testing. In addition, defendants' failed to provide any medical evaluation for plaintiff Nicole Cobo, and, thus, have likewise failed to make a prima facie showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Under these circumstances, the court need not consider the sufficiency or insufficiency of the plaintiff's opposition papers ( see, Barrett v. Jeannot, 2005 NY App. Div. LEXIS 5601 [2nd Dept. 2005]; Rich-Wing v. Baboolal, 2005 NY App. Div. LEXIS 5654 [2nd Dept. 2005]).
Striking Plaintiffs' Note of Issue
Defendant further moves for an order striking the plaintiffs' note of issue and certificate of readiness, solely premised upon the failure of plaintiff Nicole Cobo to appear for an Independent Medical Examination ("IME").
Plaintiffs filed their note of issue and certificate of readiness in this matter on or about October 28, 2004. At no time from October 28, 2004 until the instant application was filed in January, 2005, (over two months), did counsel move to strike the plaintiffs' note of issue on the ground of outstanding discovery.
After the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure ( see, Audiovox Corp. v. Benyamini, 265 AD2d 135 [2nd Dept. 2000]).
The first permits a court, in its discretion, to grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness, where the moving party demonstrates that "unusual or unanticipated circumstances" developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice. ( 22 N.Y.C.R.R. 202.21 [d]; see, James v. NY City Transit Auth., 294 AD2d 471 [2nd Dept. 2002]; Karakostas v. Avis Rent A Car Sys., 306 AD2d 381 [2nd Dept. 2003]). In the instant application, counsel for Settel states that "[w]e have just come to learn that [Nicole Cobo] missed the IME" (affirmation of Lynne B. Prommersberger, Esq. at paragraph 45). This is belied by the copies of letters annexed to movants' motion papers, which indicate that, as early as May, 2004, defendants' counsel knew, or should have known, that the subject IME was not held and moved timely to compel the required disclosure. It is the responsibility of defendants' counsel, not that of plaintiffs' counsel or the court, to monitor the receipt of mandated disclosure. Thus, the court finds that the defendants have failed to establish that "unusual or unanticipated circumstances" developed subsequent to the filing of plaintiffs' note of issue to warrant the exercise of its discretion in this regard ( see, Jacques v. City of New York, 7 AD3d 576 [2nd Dept. 2003]; Rodriguez v. Sau Wo Lau, 298 AD2d 376 [2nd Dept. 2002].
The second, pursuant to 22 N.Y.C.R.R. § 202.21(e), provides, in pertinent part: "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect." Defendants' counsel failed to move timely to compel the outstanding disclosure, ( see, e.g., Costanza v. Skyline Towers 5, 8 AD3d 524 [2nd Dept. 2004]; Lelekakis v. Kamamis, 8 AD3d 629 [2nd Dept. 2004], and, for the aforementioned reasons, the court finds counsel's excuse unavailing, and contradicted by the evidence submitted.
Finally, it is well-settled that, before resorting to the use of court intervention, it is incumbent upon the movant to undertake efforts between herself and the non-disclosing party to resolve the discovery dispute, and to submit an "affirmation of good faith" delineating her attempts to confer with counsel for the opposing party( see, 22 N.Y.C.R.R. § 202.7 [a], [c]; Romero v. Korn, 236 AD2d 598 [2nd Dept. 1997]; Fanelli v. Fanelli, 296 AD2d 373 [2nd Dept. 2002]; Diel v. Rosenfeld, 784 NYS2d 379 [2nd Dept. 2004]). Movants' counsel failed to submit the required affirmation, or to demonstrate that she ever actually conferred with the opposing party in a good faith effort to resolve the issues raised by the motion, or that any of the issues therein were actually discussed, as required by 22 N.Y.C.R.R. § 202.7 [a], [c]. Indeed, the record indicates to the contrary, that had she timely requested the IME, it would have been agreed to by plaintiffs' counsel.
The drastic remedy of striking a pleading or dismissing the complaint pursuant to C.P.L.R. § 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith. Only where a party disobeys a court order and by their conduct frustrates disclosure, is dismissal within the sound discretion of the trial court ( see, Ave. C Constr. v. Gassner, 306 AD2d 506 [2nd Dept. 2003]; Cronin v. Perry, 269 AD2d 351 [2nd Dept. 2000]). Defendants have not met their burden in this regard. Instead, the record indicates that, by their inaction, and failure to follow the procedures set forth above, they have caused the situation complained of, and waived their right to the disclosure they now belatedly seek.
Conclusion
Accordingly, it is,
ORDERED that the motion by defendants LEXINGTON LEASING CO. and THOMAS SETTEL for an order granting the defendants summary judgment on liability and dismissing the plaintiffs' complaint and all cross-claims based upon the emergency doctrine is denied in all respects; and it is further,
ORDERED that the defendants' motion to dismiss based upon the plaintiffs' failure to meet the "serious injury" threshold under Insurance Law § 5102(d) is similarly denied in all respects; and it is further
ORDERED that the defendants' motion to strike the plaintiffs' note of issue and certificate of readiness or to compel further disclosure is denied in all respects; and it is further,
ORDERED that the defendants' motion is otherwise denied in all respects.