Pappas v. New York City Transit Authority

208 A.D.3d 890

174 N.Y.S.3d 728

George W. PAPPAS, et al., appellants,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.

2021–04933

Index No. 708069/17

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

Argued—June 6, 2022

August 31, 2022

Mallilo & Grossman, Flushing, NY (Lorenzo Tasso of counsel), for appellants.

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

ANGELA G. IANNACCI, J.P., JOSEPH A. ZAYAS, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Joseph Risi, J.), dated June 29, 2021. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Donna Marie Pappas and her husband, the plaintiff George W. Pappas, allege that they sustained personal injuries when a vehicle operated by George, in which Donna was a passenger, was struck from the rear by a bus allegedly owned by the defendants New York City Transit Authority and Metropolitan Transportation Authority and operated by the defendant Wilfred A. Drummond. After joinder of issue, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion on the basis of the emergency doctrine. The plaintiffs appeal.

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 is appropriate, 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 ).

In support of their motion, the defendants submitted the General Municipal Law § 50–h hearing testimony of both of the plaintiffs. Both of the plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the defendants’ bus struck them from the rear without warning. George further testified that he had stopped the vehicle because the traffic light he was approaching was red. The defendants also submitted the deposition testimony of Drummond, the operator of the bus, who testified that the accident occurred because the plaintiffs’ vehicle moved into the bus's lane in front of the bus and, without warning, stopped abruptly despite having a green light in its favor. This conflicting testimony, without more, would have presented a triable issue of fact as to how the accident occurred and whether George or Drummond 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 ). However, the bus surveillance video, which the defendants also submitted in support of their motion, and which, contrary to the plaintiffs’ contention,...