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

1034
CA 12-00305
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


MICHELLE STEWART, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SUZANNE KIER, CHARLENE HAUSER,
DEFENDANTS-RESPONDENTS,
ANNIE WALDRON AND SAMMIE HANNAH,
DEFENDANTS-APPELLANTS.


CULLEY, MARKS, TANENBAUM & PEZZULO, LLP, ROCHESTER (GARY J. GIANFORTI
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

GALLO & IACOVANGELO, LLP, ROCHESTER (DAVID D. SPOTO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

LAW OFFICES OF LAURIE G. OGDEN, ROCHESTER (DAVID F. BOWEN OF COUNSEL),
FOR DEFENDANT-RESPONDENT CHARLENE HAUSER.

BARTH SULLIVAN BEHR, BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR
DEFENDANT-RESPONDENT SUZANNE KIER.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered November 18, 2011 in a personal injury
action. The order denied the motion of defendants Annie Waldron and
Sammie Hannah for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint and cross claims against defendants Annie Waldron
and Sammie Hannah are dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained in a motor vehicle accident when she was a
passenger in a vehicle operated by Annie Waldron and owned by Sammie
Hannah (defendants). The accident occurred when a vehicle operated by
defendant Suzanne Kier collided with the vehicle operated by Waldron.
Kier and Waldron were driving in opposite directions on a two-lane
highway, and the vehicle driven by Kier entered Waldron’s lane of
travel. Immediately after the collision, a vehicle driven by
defendant Charlene Hauser, who had been traveling behind Waldron,
collided with the back of Waldron’s vehicle. Defendants moved for
summary judgment dismissing the complaint and cross claims against
them, contending that the emergency doctrine applied and that
Waldron’s actions were reasonable under the circumstances. We agree
                                 -2-                          1034
                                                         CA 12-00305

with defendants that Supreme Court erred in denying their motion.

     Under the emergency doctrine, “ ‘when [a driver] is faced with a
sudden and unexpected circumstance which leaves little or no time for
thought, deliberation or consideration, or causes the [driver] to be
reasonably so disturbed that [he or she] must make a speedy decision
without weighing alternative courses of conduct, the [driver] may not
be negligent if the actions taken are reasonable and prudent in the
emergency context’ . . . , provided the [driver] has not created the
emergency” (Caristo v Sanzone, 96 NY2d 172, 174, quoting Rivera v New
York City Tr. Auth., 77 NY2d 322, 327, rearg denied 77 NY2d 990). It
is also well established that a driver is “not required to anticipate
that [another driver’s] vehicle, traveling in the opposite direction,
would cross over into his [or her] lane of travel” (Cardot v Genova,
280 AD2d 983, 983).

     Here, defendants met their initial burden by establishing as a
matter of law that the emergency doctrine applied, inasmuch as Kier’s
vehicle unexpectedly crossed over into Waldron’s lane of travel and
deposition testimony established that Waldron had little or no time to
react or avoid the collision (see Caristo, 96 NY2d at 174). In
response, plaintiff failed to raise an issue of fact with respect to
the applicability of the emergency doctrine or the reasonableness of
Waldron’s actions. Although “it generally remains a question for the
trier of fact to determine whether an emergency existed and, if so,
whether the [driver’s] response thereto was reasonable” (Schlanger v
Doe, 53 AD3d 827, 828), summary judgment is appropriate where, as
here, “ ‘the driver presents sufficient evidence to establish the
reasonableness of his or her actions [in an emergency situation] and
there is no opposing evidentiary showing sufficient to raise a
legitimate question of fact’ ” (McGraw v Glowacki, 303 AD2d 968, 969;
see Ward v Cox, 38 AD3d 313, 314). The contentions of plaintiff,
Kier, and Hauser that Waldron may have had sufficient time to react to
the crossover vehicle or that Waldron was driving at an excessive rate
of speed for the road conditions are speculative and thus are
insufficient to raise an issue of fact to defeat the motion (see
generally Bellassai v Roberts Wesleyan Coll., 59 AD3d 1125, 1126).




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
