        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1108
CA 16-01125
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.


COLLEEN M. ZBOCK, AS ADMINISTRATRIX OF THE
ESTATE OF JOHN P. ZBOCK, JR., DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DANIEL B. GIETZ, RONNIE L. BROWN, PHILLIP C.
FOURNIER, FOURNIER ENTERPRISES, INC., AND COPE
BESTWAY EXPRESS, INC., DOING BUSINESS AS
BESTWAY DISTRIBUTION SERVICE,
DEFENDANTS-APPELLANTS.


BURDEN, GULISANO & HANSEN, LLC, BUFFALO (SARAH HANSEN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS PHILLIP C. FOURNIER, FOURNIER ENTERPRISES, INC.,
AND COPE BESTWAY EXPRESS, INC., DOING BUSINESS AS BESTWAY DISTRIBUTION
SERVICE.

BROWN & KELLY, LLP, BUFFALO (RENATA KOWALCZUK OF COUNSEL), FOR
DEFENDANT-APPELLANT DANIEL B. GIETZ.

CHELUS, HERDZIK, SPEYER & MONTE P.C., BUFFALO (MICHAEL J. CHMIEL OF
COUNSEL), FOR DEFENDANT-APPELLANT RONNIE L. BROWN.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered February 1, 2016. The order, insofar as
appealed from, denied in part the motions of defendants for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of defendant
Ronnie L. Brown in its entirety and dismissing the complaint and all
cross claims against him and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff, as administratrix of the estate of John
P. Zbock, Jr. (decedent), commenced this action seeking damages for
the wrongful death and conscious pain and suffering of decedent
allegedly resulting from a motor vehicle accident. The fatal accident
occurred on Interstate 190 on the North Grand Island bridge. The
sequence of events leading to the accident began when a van operated
by defendant Ronnie L. Brown lost power as it approached the crest of
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                                                         CA 16-01125

the bridge, and Brown moved the van to the right, but it remained in
the travel lane. After activating his four-way hazard lights, Brown
exited the van and descended the bridge on foot to obtain assistance.
A tractor-trailer operated by defendant Phillip C. Fournier (Fournier)
and owned by defendants Fournier Enterprises, Inc. and Cope Bestway
Express, Inc., doing business as Bestway Distribution Service
(together with Fournier, the Fournier defendants), was proceeding in
the right lane when Fournier observed Brown’s disabled van. Fournier
slowed the tractor-trailer, moved into the left lane and engaged the
four-way hazard lights. Defendant Daniel B. Gietz was operating a
pickup truck in the right lane, and at some point decedent moved from
behind the tractor-trailer in the left lane into the right lane. When
Gietz was beside the tractor-trailer, the vehicle directly in front of
Gietz moved into the left lane, and he noticed Brown’s disabled van
for the first time. Gietz slammed on his brakes to avoid a collision
and immediately looked at his rearview mirror to see if he would be
rear-ended. As soon as he stopped, Gietz observed decedent’s
motorcycle collide with the rear driver’s side corner of his pickup
truck. Decedent was propelled over the pickup truck, and both
decedent and the motorcycle slid under the Fournier defendants’
tractor-trailer, which ran over decedent. Decedent was pronounced
dead at the scene.

     Supreme Court properly denied those parts of the motions of Gietz
and the Fournier defendants seeking summary judgment on the issues of
negligence, proximate cause and the applicability of the emergency
doctrine. With respect to Gietz, we conclude that he failed to meet
his burden on the issues of negligence and proximate cause. The rear-
end collision with the stopped pickup truck established a prima facie
case of negligence on the part of decedent and, in order to rebut the
presumption of negligence, plaintiff was required to “submit a
non[]negligent explanation for the collision” (Pitchure v Kandefer
Plumbing & Heating, 273 AD2d 790, 790). Gietz’s own account of the
accident at his deposition provided a nonnegligent explanation for the
collision on decedent’s part and thereby rebutted the presumption of
negligence. “One of several nonnegligent explanations for a rear-end
collision is a sudden stop of the lead vehicle . . . , and such an
explanation is sufficient to overcome the inference of negligence and
preclude an award of summary judgment” (Tate v Brown, 125 AD3d 1397,
1398 [internal quotation marks omitted]). The fact that decedent may
have also been negligent does not absolve Gietz of liability inasmuch
as an accident may have more than one proximate cause (see Heal v
Liszewski, 294 AD2d 911, 911). We further conclude that Gietz failed
to establish that he is entitled to the benefit of the emergency
doctrine as a matter of law, inasmuch as his own submissions raise
issues of fact whether he contributed to the emergency by failing to
notice the disabled van in his lane or react to the actions of the
tractor-trailer beside him (see Stewart v Ellison, 28 AD3d 252, 254).

     With respect to the Fournier defendants, we conclude that the
deposition testimony of one of the nonparty witnesses raised triable
issues of fact whether Fournier negligently made an unsafe lane change
that contributed to the foreseeable chain of events culminating in the
fatal accident (see Fogel v Rizzo, 91 AD3d 706, 707; Aguilar v Alonzo,
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                                                         CA 16-01125

66 AD3d 927, 928). Any inconsistencies in the testimony of that
witness raised credibility issues that cannot be resolved on a summary
judgment motion (see Uribe v Merchants Bank of N.Y., 239 AD2d 128,
128, affd 91 NY2d 336; Knepka v Tallman, 278 AD2d 811, 811). Further,
the emergency doctrine is inapplicable to the allegedly negligent
conduct of Fournier, which consisted of making an abrupt lane change
that cut decedent off and contributed to the emergency. Inasmuch as
Fournier did not change lanes in response to a perceived emergency,
and indeed the emergency did not arise until the lane change was made,
the emergency doctrine does not apply (see Jablonski v Jakaitis, 85
AD3d 969, 970).

     Contrary to the contentions of Gietz and the Fournier defendants,
we further conclude that the court properly denied those parts of
their motions for summary judgment dismissing plaintiff’s claim for
damages based upon decedent’s preimpact terror. Evidence that
decedent was thrown under the tractor-trailer moments following the
collision with the pickup truck is sufficient to support that claim
(see Rice v Corasanti, 122 AD3d 1374, 1375-1376).

     The court erred, however, in granting Brown’s motion only in
part, and should have granted in its entirety Brown’s motion for
summary judgment dismissing the complaint and cross claims against
him. Brown submitted evidence establishing as a matter of law that
his efforts to warn approaching motorists of his disabled van were
reasonable (cf. Axelrod v Krupinski, 302 NY 367, 369-370; see
generally Russo v Sabella Bus Co., 275 AD2d 660, 660-661), and the
deposition testimony of a witness that she observed his van without
its hazard lights flashing more than two hours after the accident did
not raise a triable issue of fact. We therefore modify the order
accordingly.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
