Tsai v. Zong-Ling Duh
| Citation | 79 A.D.3d 1020,913 N.Y.S.2d 748 |
| Parties | Andrew TSAI, appellant, v. ZONG-LING DUH, et al., respondents. |
| Decision Date | 21 December 2010 |
| Court | New York Supreme Court Appellate Division |
Goidel & Siegel, LLP, New York, N.Y. (Jonathan M. Goidel of counsel), for appellant.
Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), for respondents Matco Service Corp. and Michael P. Doyle.
JOSEPH COVELLO, J.P., ANITA R. FLORIO, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered August 24, 2009, as granted that branch of the motion of the defendants Matco Service Corp. and Michael P. Doyle which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On the morning of February 27, 2006, a van owned by the defendant Matco Service Corp. and operated by the defendant Michael P. Doyle (hereinafter together the Matco defendants), which was stopped for a red light in the eastbound roadway of Booth Memorial Avenue, at its intersection with Utopia Parkway, in Queens, was struck by a minivan operated by the defendant Zong-Ling Duh, which had crossed over from the westbound roadway of 58th Avenue (the continuation of Booth Memorial Avenue on the eastern side of Utopia Parkway) to the eastbound roadway of Booth Memorial Avenue. As a result of that impact, the van was propelled onto the sidewalk, where it struck the plaintiff, a pedestrian.
"Under the emergency doctrine, 'when an actor is faced with a sudden andunexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context' " ( Koenig v. Lee, 53 A.D.3d 567, 567, 862 N.Y.S.2d 373, quoting Vitale v. Levine, 44 A.D.3d 935, 936, 844 N.Y.S.2d 105). "Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact ( see Makagon v. Toyota Motor Credit Corp., 23 A.D.3d 443, 444, 808 N.Y.S.2d 120), those issues may 'in appropriate circumstances be determined as a matter of law' " ( Vitale v. Levine, 44 A.D.3d at 936, 844 N.Y.S.2d 105, quoting Bello v. Transit Auth. of N.Y. City, 12 A.D.3d 58, 60, 783 N.Y.S.2d 648). ...
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