Shetsky v. Corbett

• Decision Date: 06 June 2013
• Citation: 967 N.Y.S.2d 158,107 A.D.3d 1100,2013 N.Y. Slip Op. 04077
• Parties: Sue Ann SHETSKY, Appellant, v. Jamie A. CORBETT, Respondent. (And a Third–Party Action.) (Action No. 1.) Katherine Onufrychuk, Appellant, v. Jamie A. Corbett, Respondent, et al., Defendant. (Action No. 2.) Eugene E. Shetsky, Appellant, v. Jamie A. Corbett, Respondent. (Action No. 3.)
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1100

967 N.Y.S.2d 158

2013 N.Y. Slip Op. 04077

Sue Ann SHETSKY, Appellant,

v.Jamie A. CORBETT, Respondent.

(And a Third–Party Action.) (Action No. 1.)

Katherine Onufrychuk, Appellant,

v.Jamie A. Corbett, Respondent, et al., Defendant. (Action No. 2.)

Eugene E. Shetsky, Appellant,

v.Jamie A. Corbett, Respondent. (Action No. 3.)

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

June 6, 2013.

LaFave, Wein & Frament, PLLC, Guilderland (Jason A. Frament of counsel), for appellants in action Nos. 1 and 2.

Law Offices of David Golomb, New York City(Frank A. Longo of counsel), for appellant in action No. 3.

Brian D. Richardson, Albany, for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and GARRY, JJ.

STEIN, J.

Appeals from an order of the Supreme Court(Nichols, J.), entered February 2, 2012 in Columbia County, which, among other things, granted defendantJamie A. Corbett's motion for summary judgment dismissing the complaints against her.

On January 31, 2009, plaintiffsSue Ann Shetsky and Katherine Onufrychuk were passengers in a vehicle operated by plaintiffEugene E. Shetsky(hereinafter Shetsky) that was traveling northbound on Route 170 in the City of Little Falls, Herkimer County.Due to snow drifting onto the road, the Shetsky vehicle began to veer to the left, crossed over the center line and collided head-on with a southbound vehicle operated by defendantJamie A. Corbett(hereinafter defendant).Each plaintiff subsequently commenced an action against defendant to recover for the injuries each sustained in the accident.¹After joinder of issue, defendant moved for summary judgment dismissing the complaints against her on the basis that she was faced with an emergency situation not of her making and acted reasonably in view of the circumstances.Supreme Court granted the motion and these appeals by plaintiffs ensued.

We affirm.The 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”( Warley v. Grampp,103 A.D.3d 997, 999, 959 N.Y.S.2d 767[2013][internal quotation marks and citations omitted];seeCaristo v. Sanzone,96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36[2001];Rivera v. New York City Tr. Auth.,77 N.Y.2d 322, 322, 567 N.Y.S.2d 629, 569 N.E.2d 432[1991];Copeland v. Bolton,101 A.D.3d 1283, 1284, 956 N.Y.S.2d 231[2012];Hubbard v. County of Madison,93 A.D.3d 939, 940, 939 N.Y.S.2d 619[2012],lv. denied19 N.Y.3d 805, 2012 WL 2036586[2012] ).We have held that an emergency situation may exist when a vehicle crosses over into the opposite lane of traffic ( seeHubbard v. County of Madison,93 A.D.3d at 940, 939 N.Y.S.2d 619;Cancellaro v. Shults,68 A.D.3d 1234, 1236, 890 N.Y.S.2d 677[2009],lv. denied14 N.Y.3d 706, 2010 WL 1235601[2010];Burnell v. Huneau,1 A.D.3d 758, 760, 767 N.Y.S.2d 163[2003] ).However, “[t]o be granted summary judgment based on the emergency doctrine, 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] ).

In support of her motion, defendant proffered, among other things, the parties' deposition testimony, as well as the police accident report and Department of Motor Vehicle form, all of which clearly establish that the accident occurred when the Shetsky vehicle crossed over into defendant's lane of traffic.Defendant was familiar with the road, having traveled on it frequently, and explained that, in the area in question, there is a decline that flattens out into a curve in the southbound direction.Defendant testified that the weather was clear and sunny and the roads were dry on the day of the accident.She also noted that there was blowing snow at some locations on the road, but she denied having any visibility problems.

According to defendant, as she drove down the decline toward the curve—where the posted speed limit was 30 miles per hour—she coasted with her foot off the gas pedal and was traveling at a speed of no more than 20 miles per hour.Defendant claimed that, only a few seconds after she first observed the Shetsky vehicle, it crossed over the center line into her lane of traffic.In response, she applied her brakes and tried to move to the right but was unable to avoid the collision.Based on the foregoing, defendant met her threshold burden of establishing that she was faced with an emergency situation not of her own making and acted reasonably in response thereto, thus shifting the burden to plaintiffs to demonstrate the existence of triable issues of fact ( seeHubbard v. County of Madison,93 A.D.3d at 941, 939 N.Y.S.2d 619;Cancellaro v. Shults,68 A.D.3d at 1237, 890 N.Y.S.2d 677).

In opposition to the motion, plaintiffs attempted to establish the presence of factual issues as to whether defendant was negligent in causing or contributing to the accident and whether her reaction was reasonable under the circumstances.To that end, plaintiffs proffered, among other things, the affidavit of an accident reconstruction expert.Based upon his review of the police accident report, Department of Motor Vehicle form, photographs of the scene and vehicles involved in the crash, deposition testimony, and his inspection of the site, the expert opined that defendant's negligence was a substantial factor in causing the collision.

Specifically, plaintiffs' expert concluded that a vehicle coasting down Route 170 “in the same manner as [defendant's] vehicle” would be traveling at a speed of more than 30 miles per hour, that it would have been impossible for defendant to have maintained a speed of 20 miles per hour, and that defendant was “traveling too fast for conditions.”However, the expert's conclusion regarding defendant's rate of speed was based upon his assumption that she did not brake at any time as she traveled down the decline in the road.As Supreme Court noted, this assumption was without any evidentiary basis and, indeed, was contradicted by defendant's unrefuted testimony.While she was unable to...