                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 22, 2015                     518894
________________________________

JEANETTE A. SMITH,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

RACHEL B. ALLEN et al.,
                    Respondents.
________________________________


Calendar Date:   November 17, 2014

Before:   Peters, P.J., Rose, Egan Jr. and Lynch, JJ.

                               __________


      McNamee, Lochner, Titus & Williams, PC, Albany (Christopher
Massaroni of counsel), for appellant.

      Corrigan McCoy & Bush, PLLC, Rensselaer (Peter J. Corrigan
of counsel), for Rachel B. Allen, respondent.

      Pemberton & Briggs, Schenectady (Paul Briggs of counsel),
for Harold R. Boutelle, respondent.

                               __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered September 4, 2013 in Saratoga County, which granted
defendants' motions for summary judgment dismissing the
complaint.

      On February 7, 2009 at approximately 6:00 p.m., defendant
Harold R. Boutelle was driving northbound on North Creek Road in
the Town of Greenfield, Saratoga County. As defendant Rachel B.
Allen was driving a vehicle owned by defendant Connie E. Bourdeau
southbound on the same road, Allen struck a deer that was then
propelled into the air and onto the hood of Boutelle's vehicle,
                              -2-                518894

breaking Boutelle's windshield and exiting through his rear
window. Plaintiff, a front-seat passenger in Boutelle's truck,
was seriously injured and she commenced this negligence action
against defendants. Following joinder of issue, defendants moved
for summary judgment dismissing the complaint. Supreme Court
granted the motions and plaintiff now appeals.

      As the proponents of a motion for summary judgment, it was
incumbent upon defendants to "make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of
fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; accord
Baird v Gormley, 116 AD3d 1121, 1122 [2014]). In support of
their motions, defendants relied upon the deposition testimony of
Boutelle and Allen. Boutelle testified that, on the evening in
question, it was getting dark, he was driving approximately 40 to
50 miles per hour, which was less than the posted speed limit,
and was traveling along a straightaway when he noticed a vehicle
ahead of him in the opposite lane lower its high beams. As he
approached the vehicle, he was talking to plaintiff while keeping
a view of the road. He never saw the deer until it came through
his windshield and struck plaintiff.

      Similarly, Allen testified that it was getting dark and she
was traveling with a front-seat passenger going approximately 40
miles per hour along a straightaway just prior to the accident.
She stated that she dimmed her headlights upon seeing an
approaching vehicle in the opposite lane, but did not see any
deer. Even when the deer impacted her vehicle, she was not sure
exactly what she had hit. She learned later that she had struck
a deer and that it had been propelled into the windshield of
Boutelle's truck, which was the approaching vehicle. Like
Boutelle, she did not slow down or have an opportunity to take
evasive action.

      Generally, "[d]rivers have a duty to see what should be
seen and to exercise reasonable care under the circumstances to
avoid an accident" (Singh v Avis Rent A Car Sys., Inc., 119 AD3d
768, 769 [2014]; see Rost v Stolzman, 81 AD3d 1401, 1402 [2011];
Woolley v Coppola, 179 AD2d 991, 992 [1992]). The deposition
testimony of both Boutelle and Allen established that it was dusk
                              -3-                518894

and that neither of them saw the deer until it came into contact
with their respective vehicles. There is nothing in their
testimony to suggest that they should have seen the deer under
the circumstances presented or that either had time to react to
avoid it (see Meagher v Greis, 283 AD2d 970, 970-971 [2001]).
Furthermore, there is no evidence that either was speeding,
distracted while driving or in violation of the Vehicle and
Traffic Law (compare Shui-Kwan Lui v Serrone, 103 AD3d 620, 620-
621 [2013]; Olsen v Baker, 112 AD2d 510, 511 [1985], lv denied 66
NY2d 604 [1985]; Bishop v Sumner, 67 AD2d 797, 797 [1979]).
Thus, defendants demonstrated their entitlement to summary
judgment.

      Having made this showing, the burden then shifted to
plaintiff to "produce evidentiary proof in admissible form
sufficient to establish the existence of [a] material issue of
fact which require[s] a trial of the action" (Alvarez v Prospect
Hosp., 68 NY2d at 324; accord Baird v Gormley, 116 AD3d at 1123).
In opposition to the motions, plaintiff submitted the deposition
testimony of John Reome, a tow truck operator who was driving
ahead of Allen on the evening in question, as well as the
affidavit of Bradford Silver, an automobile accident
reconstruction expert. Reome acknowledged that it was getting
dark at the time and that he, as well as Allen and Boutelle, had
activated their headlights. He related that he saw four or five
deer on the left side of the road eating apples on the ground
near a bend just before a straightaway that continued
approximately 1,500 feet. He noticed Allen's car behind him and
had passed Boutelle's truck when he observed that the vehicles
seemed to disappear. He stated that he turned around to discover
that Allen's car had struck a deer, propelling the deer into the
windshield of Boutelle's truck.

      After reviewing the deposition transcripts and other
documentary evidence, and visiting the accident site, Silver
provided an opinion on the estimated reaction times for Allen and
Boutelle based upon the speeds that they were traveling and their
clear sight distances from the accident location. He opined that
Boutelle had three seconds to react and that Allen had 11
seconds, both of which were greater than the .75- to 1.5-second
range of driver perception-reaction times generally accepted by
                              -4-                518894

accident reconstruction authorities. On this basis, he further
opined that Allen and Boutelle were both negligent in not
observing the deer and reacting to avoid the accident.

      We find that neither the deposition testimony of Reome nor
the affidavit of Silver raises a material issue of fact on the
issue of negligence so as to preclude an award of summary
judgment in favor of defendants (see Bachman v Cook, 281 AD2d
938, 939 [2001]). Significantly, Reome's testimony does not
establish that the deer he observed eating apples were in the
same area of the road where the accident occurred or that it was
one of these deer that actually impacted the vehicles driven by
Allen and Boutelle. In view of this, it cannot be concluded that
either Allen or Boutelle failed to perceive an apparent hazard
and take reasonable measures to avoid contact. Moreover, to the
extent that Silver's affidavit relies upon the testimony of Reome
and also fails to take into account the fact that it was dusk at
the time of the accident, it is of questionable probative value
and, further, is lacking in detail, as it does not set forth the
calculations that he made to arrive at his conclusion that
Boutelle had three seconds to react and Allen had 11 seconds (see
Costanzo v County of Chautauqua, 110 AD3d 1473, 1473 [2013]).
Accordingly, we find that the affidavit is conclusory,
speculative and insufficient to defeat defendants' motions (see
Meagher v Greis, 283 AD2d at 971; see also Rost v Stolzman, 81
AD3d at 1403). Therefore, even viewing the evidence in the light
most favorable to plaintiff (see Boyce v Vazquez, 249 AD2d 724,
726 [1998]), Supreme Court properly granted defendants' motions
and dismissed the complaint (see Wolbe v Fishman, 29 AD3d 785,
785-786 [2006]; Miesing v Whinnery, 233 AD2d 551, 552 [1996]).

     Rose, Egan Jr. and Lynch, JJ., concur.
                        -5-                  518894

ORDERED that the order is affirmed, with one bill of costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
