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

234
CA 15-00478
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


FRANCIS P. OSCIER, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOANNE V. MUSTY, DEFENDANT-RESPONDENT-APPELLANT,
ANTHONY J. MINGARELLI, JR.,
DEFENDANT-APPELLANT-RESPONDENT,
ET AL., DEFENDANT.
(APPEAL NO. 1.)


COHEN & LOMBARDO, P.C., BUFFALO (CHRISTOPHER R. POOLE OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

LAW OFFICES OF JOHN WALLACE, BUFFALO (LEO T. FABRIZI OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT.

PERLA & PERLA, LLP, BUFFALO (MICHAEL M. METZGER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Jeremiah J. Moriarty, III, J.), entered December 15, 2014.
The order denied the cross motion of defendant Anthony J. Mingarelli,
Jr., and the cross motion of defendant Joanne V. Musty for summary
judgment with respect to the emergency doctrine.

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

     Memorandum: These consolidated appeals arise from a negligence
action in which plaintiff seeks damages for personal injuries
sustained in a motor vehicle accident that allegedly occurred when a
vehicle driven by defendant Anthony J. Mingarelli, Jr., struck a
vehicle being operated by plaintiff, which was stopped at a stop sign.
At a deposition, Mingarelli testified that he swerved to avoid a
vehicle driven by defendant Joanne V. Musty, which had proceeded
through a stop sign on the opposite side of the intersection from
plaintiff and began to enter Mingarelli’s lane of travel, and that his
vehicle slid on the ice and snow when he took evasive action,
resulting in his vehicle striking plaintiff’s vehicle. Musty
testified at a deposition that she inched slowly into the intersection
because her view was blocked, and that she stopped her vehicle before
it entered Mingarelli’s lane of travel.

     Plaintiff commenced this action against Mingarelli, Musty, and
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                                                         CA 15-00478

defendant T&T Concrete, Inc. (T&T), alleging that Musty and Mingarelli
were negligent and that T&T was vicariously liable for Mingarelli’s
negligence because it was an owner of the vehicle operated by
Mingarelli. In appeal No. 1, Mingarelli appeals and Musty cross-
appeals from an order that, inter alia, denied Mingarelli’s cross
motion for summary judgment dismissing the complaint and all cross
claims against him, and denied that part of Musty’s cross motion
seeking summary judgment dismissing Mingarelli’s affirmative defense
based on the emergency doctrine. In appeal No. 2, plaintiff appeals
and Musty appeals from an order that granted T&T’s motion for summary
judgment dismissing the complaint against it. In appeal No. 3, Musty
appeals from an order that granted T&T’s separate motion for summary
judgment dismissing Musty’s cross claims against it.

     In appeal No. 1, Mingarelli contends that Supreme Court erred in
denying his cross motion because the emergency doctrine absolved him
from liability and, on her cross appeal, Musty contends that the court
erred in denying that part of her cross motion for summary judgment
dismissing Mingarelli’s affirmative defense based on the emergency
doctrine. We reject both contentions. Even assuming, arguendo, that
Mingarelli met his “initial burden [of] establishing that the
emergency doctrine applied, inasmuch as [he testified] that [Musty]’s
vehicle unexpectedly crossed over into [his] lane of travel, [that he]
had been operating his vehicle in a lawful and prudent manner, and
[that he] had little time to react to avoid the collision” (Shanahan v
Mackowiak, 111 AD3d 1328, 1329; see Albert v Machols, 129 AD3d 1481,
1482; see generally Caristo v Sanzone, 96 NY2d 172, 174), we conclude
that plaintiff and Musty raised a triable issue of fact by submitting
Musty’s deposition testimony in which she testified that she stopped
before she reached the middle of the intersection and did not enter
Mingarelli’s lane of travel. Furthermore, “[e]ven where an emergency
is found to exist, that does not automatically absolve one from
liability; a party may still be found negligent if the acts in
response to the emergency are found to be unreasonable” (Davis v Pimm,
228 AD2d 885, 887, lv denied 88 NY2d 815; see Esposito v Wright, 28
AD3d 1142, 1143; see also Heye v Smith, 30 AD3d 991, 992), and
plaintiff and Musty submitted evidence that raised an issue of fact
whether Mingarelli acted unreasonably in response to any emergency
that may have existed. Given the existence of issues of fact
regarding the applicability of the emergency doctrine to this case,
the court properly denied both cross motions with respect to that
defense. We have considered Musty’s remaining contention in appeal
No. 1, and we conclude that it is without merit.

     Contrary to the contentions of plaintiff and Musty in appeal No.
2 and Musty in appeal No. 3, the court properly granted the motions of
T&T for summary judgment dismissing the complaint and all cross claims
against it. Plaintiff sought to impose vicarious liability on T&T,
contending that it was an owner of the vehicle operated by Mingarelli,
who was T&T’s sole principal, and Musty’s cross motion was based on
the same theory of liability. Plaintiff and Musty contended that T&T
was liable pursuant to Vehicle and Traffic Law § 388, which states
that an owner shall be liable for death or injuries resulting from the
negligent use of the vehicle (see § 388 [1]), and which further states
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                                                         CA 15-00478

that an “ ‘owner’ shall be as defined in section one hundred
twenty-eight of this chapter and their liability under this section
shall be joint and several” (§ 388 [2]). In support of its motions,
T&T submitted evidence including the title to the vehicle, which was
in Mingarelli’s name, Mingarelli’s deposition testimony in which he
testified that he used the vehicle for personal use only, evidence
establishing that the accident occurred on a Saturday while Mingarelli
was not engaged in work activity, his personal insurance policy
covering the vehicle, and T&T’s corporate insurance policy, which did
not cover it. That evidence met T&T’s burden on its motions of
establishing that Mingarelli “had the sole possessory interest in, as
well as dominion and control over, the vehicle at the time of the
accident” (Duger v Estate of Carey, 307 AD2d 675, 676; see generally
Godfrey v G.E. Capital Auto Lease, Inc., 89 AD3d 471, 477, lv
dismissed 18 NY3d 951, lv denied 19 NY3d 816). “Under these
circumstances, failure to register the vehicle with the Department of
Motor Vehicles [in Mingarelli’s name] is not enough to raise an issue
of fact in regard to ownership” (Duger, 307 AD2d at 676; cf. Allstate
Ins. Co. v Persampire, 45 AD3d 706, 706-707; see also Spratt v Sloan,
280 AD2d 465, 466).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
