Ferris v. Grogan

• Decision Date: 12 May 2011
• Citation: 2011 N.Y. Slip Op. 03953,922 N.Y.S.2d 634,84 A.D.3d 1571
• Parties: Jared T. FERRIS, Appellant,v.Mark M. GROGAN, Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1571
922 N.Y.S.2d 634
2011 N.Y. Slip Op. 03953

Jared T. FERRIS, Appellant,
v.
Mark M. GROGAN, Respondent.

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

May 12, 2011.

[922 N.Y.S.2d 634]

Tabner, Ryan & Keniry, L.L.P., Albany (Brian M. Quinn of counsel), for appellant.Burke, Scolamiero, Mortati & Hurd, Albany (Thomas A. Cullen of counsel), for respondent.Before: MERCURE, J.P., LAHTINEN, MALONE JR., KAVANAGH and GARRY, JJ.MALONE JR., J.

[84 A.D.3d 1571] Appeal from an order of the Supreme Court (Ferradino, J.), entered November 15, 2010 in Saratoga County, which, among

[922 N.Y.S.2d 635]

other things, granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff was driving northbound on West River Road in the [84 A.D.3d 1572] Town of Moreau, Saratoga County at approximately 11:30 P.M. on January 21, 2009 when he fell asleep and his vehicle veered off the road to the west, struck a tree, and came to rest perpendicularly to the road so that the back end of his vehicle extended approximately six feet into the southbound lane. Plaintiff exited his vehicle, which was inoperable and unlit, and stood next to the driver's side rear wheel while attempting to make a telephone call for help. As he was dialing, plaintiff observed defendant's vehicle traveling southbound and he began to wave his arms above his head. Defendant testified that he was traveling between 35 and 45 miles per hour and first observed plaintiff's vehicle from approximately 100 feet away. Defendant immediately braked and swerved to the left, successfully avoiding a collision with plaintiff's vehicle. However, as defendant swerved, plaintiff attempted to run across the road and was hit by defendant's vehicle.

Plaintiff thereafter commenced this action to recover damages for his injuries. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion and cross-moved for partial summary judgment on the issue of liability. Supreme Court granted defendant's motion and dismissed the complaint. Plaintiff appeals.

A driver who is confronted with “ ‘a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration’ ” may not be liable if his or her actions taken in response are reasonable ( Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001], quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, ...