Shetsky v. CorbettShetsky v. Corbett
Sue Ann Shetsky, Appellant, v Jamie A. Corbett, Respondent. (And a Third-Party Action.) (Action No. 1.) Katherine Onufrychuk, Appellant, v Jаmie A. Corbett, Respondent, et al., Defendant. (Action No. 2.) Eugene E. Shetsky, Appel- lant, v Jamie A. Corbett, Respondent. (Action No. 3.) [967 NYS2d 158]—
On January 31, 2009, plaintiffs Sue Ann Shetsky and Katherine Onufrychuk were passengers in a vehicle operated by plaintiff Eugene E. Shetsky (hereinafter Shetsky) that was traveling northbound on Route 170 in the City of Little Falls, Herkimer County. Due to snow drifting onto the road, the Shetsky vehicle began to veer to the left, crossed over the center line and collided head-on with a southbound vehiсle operated by defendant Jamie A. Corbett (hereinafter defendant). Each plaintiff subsequently commenced an action against defendant to recovеr for the injuries each sustained in the accident.1 After joinder of issue, defendant moved for summary judgment dismissing the complaints against her on the basis that she was faced with an emergency situation not of her making and acted reasonably in view of the circumstances. Supreme Court granted the motion and these appeals by plaintiffs ensued.
We affirm. The emergency doctrinе relieves an automobile driver of liability when such driver is faced with an “emergency situation, not of his or her own making, has little or no time to consider an alternative course of conduct and acts reasonably under the circumstances” (Warley v Grampp, 103 AD3d 997, 999 [2013] [internal quotation marks and citations omitted]; see Caristo v Sanzone, 96 NY2d 172, 174 [2001]; Rivera v New York City Tr. Auth., 77 NY2d 322, 322 [1991]; Copeland v Bolton, 101 AD3d 1283, 1284 [2012]; Hubbard v County of Madison, 93 AD3d 939, 940 [2012], lv denied 19 NY3d 805 [2012]). We have held that an emergency situation may exist when a vehicle crosses over into the opposite lane of traffic (see Hubbard v County of Madison, 93 AD3d at 940; Cancellaro v Shults, 68 AD3d 1234, 1236 [2009], lv denied 14 NY3d 706 [2010]; Burnell v Huneau, 1 AD3d 758, 760 [2003]). However, “[t]o be granted summary judgment based on the emergency doctrine, a driver must establish as a matter of law that hе or she did not contribute to the creation of the emergency situation, and that his or
In support of her motion, defendant proffered, among other things, the parties’ deposition testimony, as well as the police accident report and Department of Motor Vehicles form, all of which clearly establish that the accident occurred when the Shetsky vehicle crossed over into defendant‘s lane of traffic. Defendant was familiar with the road, having traveled on it frequently, and explained that, in the area in question, there is a decline that flattens out into a curve in the southbound direction. Defendant testified that the weather was clear and sunny and the roads were dry on thе day of the accident. She also noted that there was blowing snow at some locations on the road, but she denied having any visibility problems.
According to defendant, as she drove down the decline toward the curve—where the posted speed limit was 30 miles per hour—she coasted with her foot off the gas pedal and was travеling at a speed of no more than 20 miles per hour. Defendant claimed that, only a few seconds after she first observed the Shetsky vehicle, it crossed over the center line into her lane of traffic. In response, she applied her brakes and tried to move to the right but was unable to avoid the collision. Based on the foregoing, defendant met her threshold burden of establishing that she was faced with an emergency situation not of her own making and acted reasonably in response theretо, thus shifting the burden to plaintiffs to demonstrate the existence of triable issues of fact (see Hubbard v County of Madison, 93 AD3d at 941; Cancellaro v Shults, 68 AD3d at 1237).
In opposition to the motion, plaintiffs attempted to establish the prеsence of factual issues as to whether defendant was negligent in causing or contributing to the accident and whether her reaction was reasonable under the circumstances. To that end, plaintiffs proffered, among other things, the affidavit of an accident reconstruction expert. Based upon his review of the police accident report, Department of Motor Vehicles form, photographs of the scene and vehicles involved in the crash, deposition testimony, and his inspection of the site, the expert opined that defendant‘s negligence was a substantial factor in causing the collision.
Specifically, plaintiffs’ expert concluded that a vehicle coasting down Route 170 “in the same manner as [defendant‘s] vehicle” would be traveling at a speed of more than 30 miles per hоur, that it would have been impossible for defendant to have maintained a speed of 20 miles per hour, and that defendant
Thus, even viewing the evidence in a light most favorable to plaintiffs (see Cahoon v Frechette, 86 AD3d at 775), we agree with Supreme Court that the only reasonable inference that could be drawn from this testimоny was that defendant engaged her brakes while descending Route 170 prior to the collision and, accordingly, that the expert‘s opinion that she was traveling faster thаn 20 miles per hour should not be considered. As a result, plaintiffs’ speculative claim that defendant was traveling at an excessive rate of speed under the conditions is insufficient to raise a triable question of fact (see Cancellaro v Shults, 68 AD3d at 1237; compare Cahoon v Frechette, 86 AD3d at 776-777).
The reliance of plaintiffs’ expert on the testimony of Shetsky and Onufrychuk (the front seat passenger) that, prior to the collision they observed both of defendant‘s hands off the steering wheel—to support the expert‘s conclusion that defendant‘s actions contributed to the accident—is similarly unpersuasive. While defendant denies that she ever took her hands off the wheel, we reject plaintiffs’ claim that this created a materiаl issue of fact. Shetsky testified that, when he saw defendant‘s hands off the steering wheel, defendant looked “scared, frightened [and] shocked,” suggesting that she was responding to the impending collision. Inasmuch as plaintiffs’ expert concluded that, by the time defendant saw the Shetsky vehicle entering into her lane of traffic there was an insufficient amount
To the extent not specifically addressed herein, we have examined plaintiffs’ remaining contentions and find them to be unavailing.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, with costs.