Hallenbeck v. SmithHallenbeck v. Smith
Garry, J. Appeal from an order of the Supreme Court (Lynch, J.), entered March 23, 2012 in Albany County, which granted defendant Bonnie J. Garrity’s motion for summary judgment dismissing the complaint against her.
In the early morning hours of August 11, 2002, decedent was apрarently thrown from his motorcycle while traveling on Interstate Route 88 in the Town of Otego, Otsego County, and was immediately struck by a vehicle owned by defendant Mаry V. Tucker and driven by defendant Kathleen Tucker Smith (hereinafter codefendants). Soon thereafter, decedent was struck by a
We agree with plaintiff that dismissal of the wrongful death claim based upon the emergenсy doctrine was in error. As the proponent of the summary judgment motion, defendant was required to establish, as a matter of law, that she had been confrontеd with an emergency situation not of her own making and that her reaction was reasonable in light of the circumstances such that there was nothing that she could have done to avoid the accident (see Lopez-Viola v Duell, 100 AD3d 1239, 1242 [2012]; Cahoon v Frechette, 86 AD3d 774, 775 [2011]). An emergency situation is typically one in which an actor has “little or no time for thought, deliberation оr consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative сourses of conduct” (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]). Whether a situation constitutes an emergency is an issue best left to the trier of fact, “[e]xcept in the most egregious circumstanсes” (Stevenson v Recore, 221 AD2d 834, 834 [1995]; see Copeland v Bolton, 101 AD3d 1283, 1285 [2012]; Schlanger v Doe, 53 AD3d 827, 828 [2008]).
We are not persuaded that these facts demonstrate, as a matter of law, that defendant was confronted with an emergency situation that left her with little time for deliberation or that her reaction was reasonable such that there was nothing she could have done to avoid the accident. Notably, “it is not uncommon for motorists to encounter debris or other hazards in the roadway” (Stevenson v Recore, 221 AD2d at 834; but see Lonergan v Almo, 74 AD3d 902, 903 [2010]) and, here, by dеfendant’s own testimony, she had notice from at least 20 or 30 car lengths away that something out of the ordinary was happening on the highway ahead (comрare Dattilo v Best Transp. Inc., 79 AD3d 432, 433 [2010]). Further, there is also deposition testimony of the front seat passenger in codefendants’ vehicle, which had arrived at the scene and first struck either decedent or his motorcycle.3 This witness testified that, as decedent was lying in the roadway, other vehicles stopped at the scene without striking him, and at least one other vehicle passed through the scene without incident. In light of this testimony, “a question arises as to whether defendant should have anticipated and been prepared to deal with the situation confronting [her]” and whether her actions were reasonable under the circumstances (Stevenson v Recore, 221 AD2d at 834-835).
Defendant
Finally, we disagree with defendant’s аlternate argument for affirmance (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), as we find that Supreme Court properly determined that the wrongful death cause of action wаs timely. Where, as here, the sole distributees of an estate are infants, the toll of
Peters, PJ., Rose and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, with costs to plaintiff, by reversing so much thereof as granted that part оf defendant Bonnie J. Garrity’s motion for summary judgment dismissing the wrongful death cause of action against her; motion denied to that extent; and, as so modified, affirmed. [Prior Case History: 35 Misc 3d 1204(A), 2012 NY Slip Op 50558(U).]