Ardila v. Cox

• Decision Date: 18 October 2011
• Citation: 88 A.D.3d 829,2011 N.Y. Slip Op. 07385,931 N.Y.S.2d 120
• Parties: Stella Blanca ARDILA, appellant,v.Julie A. COX, et al., defendants,Matthew L. Balch, et al., respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 829

931 N.Y.S.2d 120

2011 N.Y. Slip Op. 07385

Stella Blanca ARDILA, appellant,

v.Julie A. COX, et al., defendants,Matthew L. Balch, et al., respondents.

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

Oct. 18, 2011.

Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, N.Y. (Jonny Kool and Matthew Maiorana of counsel), for appellant.Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for respondents.MARK C. DILLON, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered July 2, 2010, as granted that branch of the motion of the defendants Matthew L. Balch and Francis J. Mayer which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 12, 2007, at approximately 11:00 A.M., the plaintiff was driving eastbound on a three-lane highway, of which two lanes were dedicated to eastbound travel and the remaining lane was dedicated to westbound travel. Behind the plaintiff, also traveling eastbound, were the defendants Matthew L. Balch, who was operating an oil tanker truck owned by the defendant Francis J. Mayer, and Michael Hartnett, who was operating a sedan owned by the defendant Luisa Hartnett. Traveling in the opposite direction was the defendant Julie Cox, who was operating a Jeep owned by the defendant Jonathan Cox. The road surface was wet due to rainfall. As Cox approached a slight right curve in the road, she crossed over the double-yellow line and into the eastbound lanes of traffic. Cox's Jeep collided with the plaintiff's vehicle, causing the plaintiff's car to spin counterclockwise and come to rest in the right eastbound lane. Cox's Jeep also spun counterclockwise but returned to the westbound lane. Upon seeing Cox's Jeep cross the double-yellow line, Balch applied the brakes on the oil tanker truck and swerved to the right, moving the truck from the left eastbound lane to the right eastbound lane where he collided with the plaintiff's car. Hartnett's car collided with the back of Balch's oil tanker truck.

The plaintiff commenced the instant action against the Coxes, the Hartnetts, Balch, and Mayer. Balch and Mayer moved for, among other things, summary judgment dismissing the complaint insofar as asserted against them, contending that Balch acted reasonably in response to an emergency situation not of his own making. The Supreme Court granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against Balch and Mayer, and the plaintiff appeals. We affirm the order insofar as appealed from.

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 Jablonski v. Jakaitis, 85 A.D.3d 969, 970, 926 N.Y.S.2d 137; Brannan v. Korn, 84 A.D.3d 1140, 1140, 923 N.Y.S.2d 345). “Although the existence of an emergency and the...