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

602
CA 14-01889
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


CHARLES M. ALBERT, PLAINTIFF-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

KATHLEEN A. MACHOLS, DEFENDANT-APPELLANT.


OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL A. REDDY OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LAW OFFICE OF FRANK G. MONTEMALO, PLLC, ROCHESTER (FRANK G. MONTEMALO
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered June 24, 2014 in a personal injury action.
The order denied the motion of defendant for summary judgment
dismissing the complaint.

     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 is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle he was operating collided head-
on with a vehicle operated by defendant. Supreme Court erred in
denying defendant’s motion seeking summary judgment dismissing the
complaint. Defendant met her initial burden by establishing as a
matter of law that the emergency doctrine applied (see generally
Caristo v Sanzone, 96 NY2d 172, 174), i.e., she established that she
was operating her vehicle in a lawful and prudent manner when
plaintiff’s vehicle suddenly and without warning crossed into her lane
of travel, and there was nothing she could have done to avoid the
collision (see Hill v Cash, 117 AD3d 1423, 1426; Wasson v Szafarski, 6
AD3d 1182, 1183). “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 was reasonable’ . . . , we conclude
that summary judgment is appropriate here because defendant[]
presented ‘sufficient evidence to establish the reasonableness of
[her] actions [in an emergency situation] and there is no opposing
evidentiary showing sufficient to raise a legitimate question of
fact’ ” (Shanahan v Mackowiak, 111 AD3d 1328, 1329-1330).


Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
