Collins v. Suraci

• Decision Date: 17 October 2013
• Citation: 2013 N.Y. Slip Op. 06764,110 A.D.3d 1214,973 N.Y.S.2d 828
• Parties: Timothy COLLINS, Respondent, v. Stephen SURACI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1214

973 N.Y.S.2d 828

2013 N.Y. Slip Op. 06764

Timothy COLLINS, Respondent,

v.Stephen SURACI et al., Appellants.

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

Oct. 17, 2013.

Burke, Scolamiero, Mortai & Hurd, LLP, Albany (Mark G. Mitchell of counsel), for appellants.

David N. Goldin, Albany, for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court(McNamara, J.), entered November 19, 2012 in Albany County, which, among other things, denied defendants' motion for summary judgment dismissing the complaint.

At approximately 4:00 p.m. on the afternoon of May 17, 2010, plaintiff was traveling westbound on the shoulder of State Route 20 in the Town of Guilderland, Albany County in his motorized wheelchair.DefendantStephen Suraci(hereinafter Suraci) also was traveling westbound on Route 20 in a vehicle owned by his father, defendantAnthony Suraci Jr.As plaintiff and Suraci approached Prospect Hill Cemetery, another westbound vehicle—traveling in the passing lane—swerved into Suraci's lane.Suraci responded by turning his vehicle toward the adjacent shoulder and, in the course of doing so, struck plaintiff's wheelchair.

Plaintiff thereafter commenced this action against defendants seeking to recover for personal injuries allegedly sustained when he was ejected from his wheelchair.Following joinder of issue and discovery, defendants, among other things, moved to amend their answer to assert the affirmative defense of lack of capacity to sue and for summary judgment dismissing the complaint.Supreme Court, insofar as is relevant here, granted defendants' motion for leave to amend but denied their motion for summary judgment dismissing the complaint.This appeal by defendants ensued.

We affirm.Initially, we reject defendants' assertion that plaintiff lacks the capacity to sue by virtue of his failure to disclose his personal injury claim in his chapter 13 bankruptcy schedule of assets.“While [c]hapter 7 and [c]hapter 11 debtors lose standing to maintain civil suits—which must be brought and/or maintained by their bankruptcy trustees—it is clear that [c]hapter 13 debtors like plaintiff are not subject to this restriction”( M & T Mtge. Corp. v. White,736 F.Supp.2d 538, 554[E.D.N.Y.2010][internal quotation marks and citations omitted];seeOlick v. Parker & Parsley Petroleum Co.,145 F.3d 513, 515–516[2d Cir.1998];Kenney v. National Fuel Gas Distrib. Corp.,8 A.D.3d 989, 989, 778 N.Y.S.2d 352[2004];see alsoIn re Dawnwood Props./78,209 F.3d 114, 116[2d Cir.2000];Matter of Miller [Berti],1 A.D.3d 885, 886, 767 N.Y.S.2d 729[2003];Giovinco v. Goldman,276 A.D.2d 469, 469, 713 N.Y.S.2d 700[2000];but seeGray v. City of New York,58 A.D.3d 448, 449, 872 N.Y.S.2d 7[2009],lv. dismissed and denied12 N.Y.3d 802, 879 N.Y.S.2d 46, 906 N.E.2d 1080[2009] ).¹Accordingly, Supreme Court properly concluded that plaintiff's omission in this regard was not fatal.

Defendants' alternative ground for dismissal, which is premised upon an application of the emergency doctrine, is equally unpersuasive.“Under the emergency doctrine, a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context”( Cancellaro v. Shults,68 A.D.3d 1234, 1236, 890 N.Y.S.2d 677[2009],lv. denied14 N.Y.3d 706, 899 N.Y.S.2d 754, 926 N.E.2d 259[2010][internal quotation marks and citations omitted];seeShetsky v. Corbett,107 A.D.3d 1100, 1101, 967 N.Y.S.2d 158[2013];Hubbard v. County of Madison,93 A.D.3d 939, 940, 939 N.Y.S.2d 619[2012],lv. denied19 N.Y.3d 805, 948 N.Y.S.2d 579, 971 N.E.2d 861[2012] ).The reasonableness of the driver's conduct, as well as whether he or she could have done something to avoid the accident, typically present questions of fact for a jury to resolve ( seeCopeland v. Bolton,101 A.D.3d 1283, 1285, 956 N.Y.S.2d 231[2012];Schlanger v. Doe,53 A.D.3d 827, 828, 861 N.Y.S.2d 499[2008];Aloi v. County of Tompkins,52 A.D.3d 1092, 1094, 861 N.Y.S.2d 805[2008];Dumas v. Shafer,4 A.D.3d 720, 722, 772 N.Y.S.2d 411[2004] ).Thus, in order to be granted summary judgment in this regard, “a driver must establish as a matter of law that he or she did not contribute to the creation of the emergency situation, and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision”( Cahoon v. Frechette,86 A.D.3d 774, 775, 927 N.Y.S.2d 689[2011];seeShetsky v. Corbett,107 A.D.3d at 1101–1102, 967 N.Y.S.2d 158).Defendants failed to meet that burden here.

Suraci's affidavit, together with his examination before trial testimony and the affidavit of a nonparty witness, established that as Suraci was proceeding west on Route 20 in heavy traffic, another vehicle suddenly came into his lane of travel, prompting him to “hit the brake[s] and move[ ] to the right,” whereup...