Anderson v. Metro. Transp. Auth.

208 A.D.3d 742

174 N.Y.S.3d 398

Edward S. ANDERSON, appellant,

v.METROPOLITAN TRANSPORTATION AUTHORITY, et al., respondents.

2020–04460

Index No. 706374/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 25, 2022

August 24, 2022

Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for appellant.

Anna J. Ervolina, New York, NY (Timothy J. O'Shaughnessy of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered May 14, 2020. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleges that he sustained injuries as a result of a collision between a vehicle owned and operated by the plaintiff and a bus owned and operated by the defendants, Metropolitan Transportation Authority, Metro Transit Authority, NYC Transit Authority, and Dhanpaul D. Singh. After joinder of issue, the defendants moved for summary judgment dismissing the complaint. In an order entered May 14, 2020, the Supreme Court granted the motion on the basis of the emergency doctrine. The plaintiff appeals. We affirm.

The emergency doctrine provides 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" ( Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 ; see Aiken v. Liotta, 167 A.D.3d 826, 827, 90 N.Y.S.3d 146. "Both the existence of an emergency and the reasonableness of a party's response thereto will ordinarily present questions of fact" ( Pavane v. Marte, 109 A.D.3d 970, 971, 971 N.Y.S.2d 562 [internal quotation marks omitted]; see Aiken v. Liotta, 167 A.D.3d at 827, 90 N.Y.S.3d 146 ). Summary judgment may be granted, however, when a party presents sufficient evidence demonstrating "the existence of an emergency, as well as the reasonableness of the actor's response to it" ( Wu Kai Ming v. Grossman, 133 A.D.3d 742, 742, 19 N.Y.S.3d 334 ; see Wade v. Knight Transp., Inc., 151 A.D.3d 1107, 1109–1110, 58 N.Y.S.3d 458 ).

Although the defendants’ submission of the transcripts of the deposition testimony of the plaintiff and of Singh, both of whom offered a different account of the accident, raised a triable issue of fact as to how the accident occurred and which party was at fault (see Weiss v. Arunsi, 184 A.D.3d 606, 607, 123 N.Y.S.3d 498 ; Delgado v. Butt, 48 A.D.3d 735, 735–736, 851 N.Y.S.2d 373 ), a bus surveillance video the defendants also submitted in support of their motion eliminated any triable issues...