Green v. Metropolitan Transportation Authority Bus Co.

127 A.D.3d 421, 7 N.Y.S.3d 85

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 2015
• Docket: 400725/12 13444 13443
• Status: Published

Opinions

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered March 7, 2014, which, to the extent appealed from, denied defendants Metropolitan Transportation Authority Bus Company and Isael Reyes’s (the MTA defendants) motion to renew, granted their motion to reargue their cross motion for summary judgment, and, upon reargument, adhered to its prior order, same court and Justice, entered October 8, 2013, granting the motion of defendants Tyese Laws and Samantha Santiago dismissing plaintiffs causes of action against them and denying the MTA defendants’ cross motion, modified, on the law, to grant upon reargument the MTA defendants’ motion for summary judgment, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Appeal from the October 8, 2013 order, dismissed, without costs, as academic.

In this action arising from an accident involving an MTA bus, the motion court improperly denied the MTA defendants’ motion for summary judgment. Plaintiff was a passenger on the bus when it came into contact with a vehicle operated by defendant Laws. Defendant Reyes, the operator of the bus, stated in an affidavit that he was suddenly cut off by a red van while proceeding north on the Bruckner Expressway, causing him to veer left and collide with the Oldsmobile sedan driven by Laws and owned by defendant Santiago. The MTA defendants moved for summary judgment, arguing that, as a matter of law, the emergency doctrine precludes any liability on their part. Upon denial of their motion, the MTA defendants moved to reargue and renew. In support of the motion, the MTA defendants provided a second affidavit by Reyes reiterating his testimony that he reacted by entering into the left lane after being cut off by a red van that suddenly jumped a barrier in order to enter the expressway.

The emergency doctrine applies in situations where an actor is confronted with a sudden or unexpected circumstance, not of the actor’s own making, that leaves little or no time for thought, deliberation, or consideration to weigh alternative courses of conduct (Caristo v Sanzone, 96 NY2d 172 [2001]). The existence of an emergency and the reasonableness of a party’s response to it ordinarily present questions of fact warranting the denial of summary judgment (Cahoon v Frechette, 86 AD3d 774 [3d Dept 2011]; Bello v Transit Auth. of N.Y. City, 12 AD3d 58 [2d Dept 2004]). Where, however, a driver presents sufficient evidence that he or she did not contribute to the creation of the emergency situation, that his or her actions were reasonable under the circumstances, and that there is otherwise no opposing evidentiary showing sufficient to raise a legitimate question of fact, summary judgment may be granted (Patterson v Central N.Y. Regional Transp. Auth. [CNYRTA], 94 AD3d 1565 [4th Dept 2012], lv denied 19 NY3d 815 [2012]). Speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency is not sufficient to defeat summary judgment (Cruz v MTLR Corp., 111 AD3d 568, 568 [1st Dept 2013]).

The MTA made a prima facie showing of entitlement to judgment as a matter of law based on the emergency doctrine defense (Edwards v New York City Tr. Auth., 37 AD3d 157 [1st Dept 2007]). Reyes stated that he was traveling north in the right lane on the Bruckner Expressway at a rate of speed of approximately 15-20 miles per hour. Although there was a service lane to his right, it was separated from the main expressway by a guard barrier. He indicated that when a red van suddenly jumped the guard barrier and entered the expressway, he immediately reacted by moving the bus into the left lane in order to avoid a collision with the van.

No alternate factual account of the accident is presented in opposition. Plaintiff, who was asleep at the time of impact, does not provide a differing version of events. Laws was rendered unconscious as a result of the collision and testified at his General Municipal Law § 50-h hearing that he did not recall anything pertaining to the actual accident.

Nor is the motion premature, even though the deposition of Reyes has not yet been held. CPLR 3212 (f) permits the party opposing summary judgment to have further discovery when it appears facts supporting its position exist but cannot be stated (Terranova v Emil, 20 NY2d 493, 497 [1967]). Where facts essential to oppose a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied (Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [1st Dept 2006], lv denied 8 NY3d 804 [2007]). Even under such circumstance, the party invoking CPLR 3212 (f) must show some evidentiary basis supporting its need for further discovery. Although Reyes’s account of the accident is uncorroborated, neither plaintiff nor codefendant Laws presents a scintilla of evidence calling the veracity of his account into question, which would have shown further discovery is required to develop their opposition to summary judgment. Contrary to the view of the dissent, Reyes’s second affidavit, although more detailed, is neither contradictory nor inconsistent with his first affidavit, and plaintiffs do not raise that argument as a basis for denying summary judgment.

The motion court correctly granted summary judgment to defendants Laws and Santiago. Laws did not create the emergency and there is no factual opposition to his claim that before the accident, he was traveling at a safe rate of speed.

We have considered the parties’ remaining arguments and find them unavailing.

Concur — Gonzalez, P.J., Renwick and Gische, JJ.