Burnell v. Huneau

• Decision Date: 13 November 2003
• Docket Number: 93716.
• Citation: 767 N.Y.S.2d 163,1 A.D.3d 758,2003 NY Slip Op 18306
• Parties: CAROL BURNELL, Individually and as Parent of CHRISTINA SOLLENBERGER, an Infant, et al., Respondents, v. STEPHEN J. HUNEAU JR., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 758

767 N.Y.S.2d 163

2003 NY Slip Op 18306

CAROL BURNELL, Individually and as Parent of CHRISTINA SOLLENBERGER, an Infant, et al., Respondents, v.STEPHEN J. HUNEAU JR., Appellant, et al., Defendants.

93716.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 13, 2003.

Appeal from that part of an order of the Supreme Court(Cannizzaro, J.), entered March 25, 2003 in Rensselaer County, which denied defendantStephen J. Huneau Jr.'s motion for summary judgment dismissing the complaint against him.

Mercure, J.P.

This action arises out of an August 2000 three-car accident in the City of Troy, Rensselaer County.The accident occurred after defendantJuan Rivera's vehicle, traveling at a high rate of speed, tipped onto two wheels and crossed into a lane of oncoming traffic.Rivera's vehicle hit a car driven by defendantStephen J. Huneau Jr.(hereinafter defendant), in which Christina Sollenberger and plaintiffCynthia Sollenberger were passengers.Defendant had swerved to the left in an attempt to avoid Rivera's vehicle.After the collision, Rivera's vehicle slid into defendantErika E. Whipple's car, which had come to a complete stop a few car lengths behind defendant's vehicle.

Plaintiffs thereafter commenced this action against defendant, Whipple, Rivera and James Forette, the owner of the vehicle that Rivera was driving, seeking damages for personal injuries suffered as a result of the accident.The parties stipulated to a scheduling order that required all depositions to be completed by September 15, 2002, any dispositive motions to be made returnable by December 1, 2002, and a note of issue and certificate of readiness to be filed on December 1, 2002 as well.^*Nevertheless, depositions were not completed until the end of January 2003.Plaintiffs filed a note of issue on January 29, 2003 and defendant moved for summary judgment on February 14, 2003.As relevant here, Supreme Court dismissed defendant's motion as untimely for failing to meet the December 1, 2002 deadline for dispositive motions.Defendant appeals and we now reverse the denial of defendant's motion.

Initially, we agree with defendant that Supreme Court should have considered his motion for summary judgment on the merits.Defendant made his motion within two weeks of plaintiffs' filing of a note of issue and approximately three weeks after depositions were completed.Inasmuch as defendant was required to wait for the return of the final deposition transcripts upon which he intended to rely (seeCPLR 3212 [b]; 3116 [a];see alsoFainberg v Dalton Kent Sec. Group,268 AD2d 247, 248[2000]), the motion could not be timely filed by the date set forth in the parties' stipulation.Moreover, the delay beyond the filing of the note of issue—which was also late under the stipulation—was minimal and, in our view, plaintiffs have failed to demonstrate any prejudice.We also note that Supreme Court considered and granted both a late motion by plaintiffs for a default judgment against Rivera and a late motion by Forette for dismissal of the complaint against him due to a lack of personal jurisdiction.Thus, while the parties did stipulate to a December 1, 2002 deadline and despite the "wide latitude" afforded to Supreme Court"with respect to determining whether `good cause' exists for permitting late motions"(Rossi v Arnot Ogden Med. Ctr.,252 AD2d 778, 779[1998]), we conclude that the better course here would have been for Supreme Court to consider defendant's motion on the merits (seeKenner v T.J. Maxx,305 AD2d 547, 547[2003];La Hendro v Nadeau,281 AD2d 717, 718[2001]).

Turning to the merits, we agree with defendant that he is entitled to dismissal of the complaint against him.The emergency doctrine "`recognizes 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'"(Caristo v Sanzone,96 NY2d 172, 174[2001]).This Court has repeatedly held that a driver is faced with an emergency situation when a car going in the opposite direction crosses into the driver's lane (see e.g.Lamey v County of Cortland,285 AD2d 885, 886[2001];Wenck v Zillioux,246 AD2d 717, 718[1998];Davis v Pimm,228 AD2d 885, 886[1996], lv denied88 NY2d 815[1996];Palmer v Palmer,31 AD2d 876, 877[1969], affd27 NY2d 945[1970]).While the question of whether a driver reacted reasonably when faced with an emergency situation is generally for the trier of fact, "`[s]ummary resolution is possible ... when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue'"(Lamey v County of Cortland, supra at 886, quotingSmith v Brennan,245 AD2d 596, 597[1997]).

Here, defendant testified that he first saw Rivera's oncoming car traveling in the proper lane.He looked briefly to his right and used his right hand to change a track on his CD player.When he looked back at the road, Rivera's car was in...