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

479
CA 12-02074
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


RANDALL J. LYONS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KEITH A. ZEMAN, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (DESTIN C. SANTACROSE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DENNIS J. BISCHOF, LLC, WILLIAMSVILLE (DENNIS J. BISCHOF OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered June 15, 2012. The order, insofar as
appealed from, denied the cross motion of defendant-appellant for
summary judgment dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained while he was a passenger in a vehicle that
was rear-ended by a vehicle operated by Keith A. Zeman (defendant).
We conclude that Supreme Court properly denied defendant’s cross
motion for summary judgment dismissing the amended complaint and all
cross claims against him.

     “A rear-end collision with a vehicle that is stopped or is in the
process of stopping ‘creates a prima facie case of liability with
respect to the [driver] of the rearmost vehicle, thereby requiring
that [driver] to rebut the inference of negligence by providing a
nonnegligent explanation for the collision’ ” (Rosario v Swiatkowski,
101 AD3d 1609, 1609; see Roll v Gavitt, 77 AD3d 1412, 1413). We agree
with plaintiff that defendant failed to establish as a matter of law
that the accident was the result of unanticipated brake failure, a
nonnegligent explanation alleged by defendant in support of his cross
motion (see Baldwin v Wilkins, 11 AD3d 917, 918). “Where, as here, .
. . defendant[] intend[s] ‘to lay the blame for the accident on brake
failure, it [is] incumbent upon [him] to show that the problem with
the brakes was unanticipated, and that [he] had exercised reasonable
care to keep them in good working order’ ” (Suitor v Boivin, 219 AD2d
799, 800; see Hubert v Tripaldi, 307 AD2d 692, 694; Schuster v Amboy
Bus Co., 267 AD2d 448, 448-449). Defendant’s own deposition testimony
                                 -2-                           479
                                                         CA 12-02074

suggested that he refused a recent recommendation to have his brake
lines fully replaced. Moreover, there are issues of fact whether the
allegedly faulty brake repair performed two months before the accident
was the sole proximate cause of the accident, as contended by
defendant.

     Contrary to defendant’s further contention, he failed to meet his
burden of establishing a nonnegligent explanation for the accident
based on the emergency doctrine. The 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; see Lifson v City of Syracuse, 17 NY3d 492, 497). “The existence
of an emergency and the reasonableness of a driver’s response thereto
generally constitute issues of fact” (Dalton v Lucas, 96 AD3d 1648,
1649; see Patterson v Central N.Y. Regional Transp. Auth. [CNYRTA], 94
AD3d 1565, 1566, lv denied 19 NY3d 815; Williams v City of New York,
88 AD3d 989, 990). Here, even assuming, arguendo, that defendant
established the existence of an emergency arising from the failure of
his brakes, we conclude that there is an issue of fact whether his
actions in response to that emergency were reasonable (see generally
Dalton, 96 AD3d at 1649-1650; Heye v Smith, 30 AD3d 991, 992).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
