Elam v. NJC Scrap Metal Recycling, Inc.

Opinion

Elam v NJC Scrap Metal Recycling, Inc.

2026 NY Slip Op 05008

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Leshawn Elam, respondent,

v

NJC Scrap Metal Recycling, Inc., et al., appellants, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2025-03788, (Index No. 528816/23)

Valerie Brathwaite Nelson, J.P.

Linda Christopher

Lourdes M. Ventura

Donna-Marie E. Golia, JJ.

Gallo Vitucci Klar LLP, New York, NY (Debra A. Boccardi and Mónica Romero of counsel), for appellants.

The Perecman Firm, PLLC, New York, NY (Peter D. Rigelhaupt and Steven Dorfman of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants NJC Scrap Metal Recycling, Inc., and Cleveland Terrance Fowler appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated January 29, 2025. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against those defendants and dismissing their ninth affirmative defense.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident. At the time of the accident, the plaintiff was a passenger in a vehicle traveling eastbound on the Brooklyn-Queens Expressway when a vehicle owned by the defendant NJC Scrap Metal Recycling, Inc., and operated by the defendant Cleveland Terrance Fowler (hereinafter the defendant driver), which was traveling westbound on the Brooklyn-Queens Expressway, allegedly struck a concrete median, causing the defendants' trailer to tip over and debris from the defendants' vehicle to fall onto the plaintiff's vehicle. In an order dated January 29, 2025, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants and dismissing their ninth affirmative defense, alleging that the plaintiff's injuries were caused by the acts of another driver which constituted an intervening, superseding event. The defendants appeal.

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034; see Rodriguez v City of New York, 31 NY3d 312). The emergency doctrine provides that "when an actor is faced with a sudden and unexpected circumstance 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 negligent if the actions taken are reasonable and prudent in the emergency context" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327).

Here, the plaintiff established, prima facie, that the defendants' negligence was a proximate cause of the accident. The evidence submitted in support of the plaintiff's motion, including a dash camera video from the defendants' vehicle, established, prima facie, that the defendant driver was negligent in navigating a curve in the road, thereby causing him to hit the concrete median (see Bing Kang Chen v S & F Travel, Inc., 219 AD3d 1477, 1478; Johnson v Braun, 120 AD3d 765, 766).

In opposition, the defendants failed to raise a triable issue of fact as to whether the defendant driver was faced with an emergency situation (see Browne v Logan Bus Co., Inc., 156 AD3d 856, 857-858; Johnson v Braun, 120 AD3d at 766-767). Contrary to the defendants' contention, the dash camera video did not support the defendant driver's contention that he struck the concrete median because an unrelated tractor-trailer failed to properly navigate a curve in the road and attempted to enter his lane of travel.

The defendants' remaining contention is without merit.

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants and dismissing their ninth affirmative defense.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court