McGraw v. Glowacki
| Decision Date | 21 March 2003 |
| Citation | 758 N.Y.S.2d 224,303 A.D.2d 968 |
| Parties | BARBARA M. McGRAW, Appellant,<BR>v.<BR>TIMOTHY S. GLOWACKI et al., Defendants, and<BR>WALTER F. MARTENS, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Present — Green, J.P., Hurlbutt, Burns, Gorski and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint and cross claim against defendant Walter F. Martens are reinstated.
Plaintiff commenced this action seeking damages for injuries that she sustained when the motorcycle on which she was a passenger collided with a vehicle driven by defendant Timothy S. Glowacki. Glowacki's vehicle was entering the roadway from a parking lot when it collided with the motorcycle, which was operated by defendant Walter F. Martens. Martens moved for summary judgment dismissing the complaint and cross claim against him based on the emergency doctrine, and Supreme Court granted the motion. That was error.
An emergency situation is a sudden and unforeseen occurrence not of a party's own making (see Davis v Pimm, 228 AD2d 885, 886 [1996], lv denied 88 NY2d 815 [1996]). Even if an emergency situation is found to exist, however, a party may nevertheless be found negligent if "the acts in response to the emergency are found to be unreasonable" (id. at 887; see Ferrer v Harris, 55 NY2d 285, 293 [1982], mot to amend remittitur granted 56 NY2d 737 [1982]). The emergency doctrine insulates a driver from liability only if it is "conclusively established that there was simply an insufficient amount of time to react to the emergency and take indicated evasive action to avoid the collision" (Lucksinger v M.T. Unloading Servs., 280 AD2d 741, 742 [2001]). "If, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991], rearg denied 77 NY2d 990 [1991]; see also Davis, 228 AD2d at 887). Summary judgment may be appropriate, however, "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" (Smith v Brennan, 245 AD2d 596, 597 [1997]). We further note that it is well settled that a driver with the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield (see Lucksinger, 280 AD2d at 742).
Here, Martens testified at his...
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