Koff v. Lawson
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Koff v Lawson
2026 NY Slip Op 04582
July 24, 2026
Appellate Division, Fourth 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.
PHILLIP J. KOFF, PLAINTIFF-APPELLANT,
v
ERICA LAWSON, DEFENDANT-RESPONDENT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on July 24, 2026
308 CA 25-01262
Present: Lindley, J.P., Curran, Ogden, Nowak, And Delconte, JJ.
PHETERSON SPATORICO LLP, ROCHESTER (STEVEN A. LUCIA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VAHEY LAW OFFICES, PLLC, ROCHESTER (LAURIE A. VAHEY OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Sam L. Valleriani, J.), entered January 28, 2025, in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the complaint.
[*1]It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he was struck by or collided with a vehicle owned and operated by defendant. The collision occurred while plaintiff, who was highly intoxicated, was attempting to cross a four-lane roadway with no crosswalk after leaving a concert venue late at night. Plaintiff managed to cross two eastbound lanes, narrowly averting being struck by one vehicle, but was struck by, or collided with, defendant's vehicle in one of the westbound lanes of travel. Following discovery, Supreme Court granted defendant's motion for summary judgment dismissing the complaint. Plaintiff now appeals.
Motorists have a duty to "exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway" (Vehicle and Traffic Law § 1146 [a]; see Uhteg v Kendra, 200 AD3d 1695, 1697 [4th Dept 2021]). Motorists also have a " 'common-law duty to see that which [they] should have seen . . . through the proper use of [their] senses . . . and to exercise reasonable care under the circumstances to avoid an accident' " (Scutella v Dill, 240 AD3d 1318, 1318 [4th Dept 2025]; see Burnett v Allen [appeal No. 3], 218 AD3d 1190, 1191 [4th Dept 2023]).
Conversely, "[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield" (Vehicle and Traffic Law § 1151 [b]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 440 [2007]). Rather, "[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway" (§ 1152 [a]; see Uhteg, 200 AD3d at 1696-1697). For a defendant driver, "a prima facie entitlement to summary judgment is established by providing evidence that a plaintiff suddenly darted out . . . directly into the path of the defendant's vehicle, leaving the defendant unable to avoid contact" (Cresser v CDTS, 1, 127 AD3d 1464, 1465 [3d Dept 2015] [internal quotation marks omitted]; see Rosner v Srulovic, 201 AD3d 980, 980 [2d Dept 2022]; Green v Hosley, 117 AD3d 1437, 1437-1438 [4th Dept 2014]).
Here, defendant, "as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident" (Pagels v Mullen, 167 AD3d 185, 187 [4th Dept 2018]). Defendant failed, however, to meet her initial burden with respect to either her [*2]negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant's evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant's submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant's vehicle.
We agree with plaintiff that defendant's own evidence raises triable issues of fact whether she " 'could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident' " (Uhteg, 200 AD3d at 1697). In Uhteg, as here, "the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run" (id. at 1697-1698). Moreover, there is no evidence that defendant's view of the oncoming lanes or median area was obscured (cf. Wallace v Barody, 124 AD3d 1172, 1172-1173 [3d Dept 2015]).
Defendant's assertion that the motion was properly granted on the ground that plaintiff was the sole proximate cause of the accident "is inapt and need not be addressed on the merits because . . . [it is] merely the converse of defendant's burden on the motion of establishing that [defendant] was not negligent or that [defendant's] negligence was not a proximate cause of the accident" (Scutella, 240 AD3d at 1319-1320 [internal quotation marks omitted]). Inasmuch as defendant here "did not address proximate cause in the context of assuming [her] negligence for the sake of argument, we need not address [her] proximate cause assertion" (id.).
We also reject defendant's assertion that the common-law emergency doctrine entitles her to summary judgment. The emergency doctrine "recognizes 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 . . . , provided the actor has not created the emergency" (Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal quotation marks omitted]; see Lifson v City of Syracuse, 17 NY3d 492, 497 [2011]). The rationale for the doctrine "has been somewhat eroded by the evolution from contributory negligence to comparative negligence. With the advent of the ability of juries to allocate fault and apportion damages, the viability of the doctrine has been questioned by some jurisdictions, with a few states going so far as to abolish it" (Caristo, 96 NY2d at 174; see Lifson, 17 NY3d at 497).
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