Johnson v. Freedman

• Decision Date: 10 June 2021
• Docket Number: 531545
• Parties: Marian JOHNSON, Respondent, v. Austin FREEDMAN et al., Respondents, and Charles N. Pratt et al., Appellants.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1206

150 N.Y.S.3d 138

Marian JOHNSON, Respondent,

v. Austin FREEDMAN et al., Respondents,andCharles N. Pratt et al., Appellants.

531545

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

Calendar Date: April 22, 2021

Decided and Entered: June 10, 2021

Hite & Beaumont, PC, Albany (John H. Beaumont of counsel), for appellants.

Martin, Harding & Mazzotti, LLP, Albany (Adam C. Hover of counsel), for Marian Johnson, respondent.

Kelly & Leonard, LLP, Ballston Spa (Thomas E. Kelly of counsel), for Austin Freedman and others, respondents.

Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from that part of an order of the Supreme Court (Ryba, J.), entered February 27, 2020 in Albany County, which denied a cross motion by defendants Charles N. Pratt and Black & White Taxi, Inc. for summary judgment dismissing the complaint against them.

On February 9, 2016 at approximately 5:36 a.m., defendant Austin Freedman was operating a 2010 Mazda 6 owned by defendants Peter Freedman and Carolyn Freedman (hereinafter collectively referred to as the Freedman defendants) when he was involved in a motor vehicle collision with a taxicab driven by defendant Charles N. Pratt and owned by defendant Black & White Taxi, Inc. (hereinafter collectively referred to as the Pratt defendants). Plaintiff, a front-seat passenger in the taxi, sustained injuries to her neck, shoulder and back as a result of the collision. Plaintiff thereafter commenced this personal injury action against defendants seeking damages for the injuries that she sustained in the accident. Following joinder of issue and discovery, plaintiff moved for partial summary judgment on the issue of liability. The Pratt defendants cross-moved for summary judgment dismissing the complaint, contending, among other things, that Pratt was not negligent as he was confronted with an emergency situation that was not of his own making and acted reasonably and prudent under the circumstances. Plaintiff and the Freedman defendants opposed the cross motion. Supreme Court determined that, given the conflicting accounts regarding how the collision occurred, a question of fact existed, thus precluding summary judgment on the issue of whether the emergency doctrine applied under the circumstances. The Pratt defendants appeal from that part of the order that denied their cross motion, and we affirm.

"On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact" ( Reed v. New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1209, 125 N.Y.S.3d 475 [2020] [internal quotation marks and citations omitted]; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). If the moving party satisfies its initial burden, the burden then shifts to the nonmoving party to demonstrate the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Foster v. Kelly, 119 A.D.3d 1250, 1252, 990 N.Y.S.2d 693 [2014] ).

The sole issue raised on appeal is whether a triable issue of fact exists with respect to whether the emergency doctrine absolved the Pratt defendants from liability for the subject accident. It is well settled that "[t]he emergency doctrine relieves an automobile driver of liability when such driver is faced with an emergency situation, not of his or her own making, has little or no time to consider an alternative course of conduct and acts reasonably under the circumstances" ( Shetsky v. Corbett, 107 A.D.3d 1100, 1101, 967 N.Y.S.2d 158 [2013] [internal quotation marks and citations omitted]; see Caristo v. Sanzone, 96 N.Y.2d 172, 174–175, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001] ; Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991] ). Although it has been held that "an emergency situation arises when a vehicle traveling in the opposite direction crosses into a driver's lane" ( Hubbard v. County of Madison, 93 A.D.3d 939, 940, 939 N.Y.S.2d 619 [2012], lv denied 19 N.Y.3d 805, 2012 WL 2036586 [2012] ; see Foster v. Kelly, 119 A.D.3d at 1251, 990 N.Y.S.2d 693 ), summary judgment is only appropriate where it is established that the driver invoking the doctrine "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] ; see Brust v. McDaniel, 162 A.D.3d 1196, 1197, 77 N.Y.S.3d 776 [2018] ; Warley v. Grampp, 103 A.D.3d 997, 999, 959 N.Y.S.2d 767 [2013] ).

In support of their motion for summary judgment, the Pratt defendants submitted, among other things, a copy of the police accident report and Pratt's deposition testimony. According to Pratt, he was traveling eastbound on Peoples Avenue in the City of Troy, Rensselaer County, when he stopped at a red light at the intersection of Peoples Avenue and Burdett Avenue. Given the early hour, it was still dark outside and it was lightly snowing and the roadway was covered in snow. When the light turned green, Pratt proceeded to enter the intersection, at which time he observed a vehicle proceeding westbound on Peoples Avenue coming down the opposite hill towards the intersection. Pratt stated that the vehicle was "going too fast" and, when he observed it, it was already "out of control ... sliding on the snow." In response, he immediately pulled his taxi to the curb along the right side of Peoples Avenue – the...