Bernot v Reid, 2024 NY Slip Op 02901 [227 AD3d 1043]

May 29, 2024

Appellate Division, Second Department

[*1]

Joseph K. Bernot, Appellant,

v

Ruth F. Reid et al., Defendants, and Eugene P. Bifulco et al., Respondents.

Mallilo & Grossman, Flushing, NY (Serge M. Pierre of counsel), for appellant.

Eric D. Feldman, Melville, NY (Scott W. Driver of counsel), for respondents Eugene P. Bifulco and another.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for respondent Crystina Meza.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered May 9, 2022. The order, insofar as appealed from, granted that branch of the motion of the defendants Eugene P. Bifulco and Hayley Bifulco which was for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the separate motion of the defendant Crystina Meza, and purportedly of the defendant Abel A. Meza, which was for summary judgment dismissing the complaint insofar as asserted against the defendant Crystina Meza.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In November 2018, a vehicle owned by the defendant Ruth F. Reid was traveling on an entrance ramp to the Southern State Parkway when the driver attempted to make a U-turn through the traveling lanes into oncoming traffic. In so doing, that vehicle struck the passenger side of a vehicle in the right lane driven by the defendant Hayley Bifulco (hereinafter Hayley) and owned by the defendant Eugene P. Bifulco (hereinafter together the Bifulco defendants), which then veered into the center lane and struck a vehicle driven by the defendant Crystina Meza (hereinafter Crystina) and owned by the defendant Abel A. Meza (hereinafter Abel and, together with Crystina, the Meza defendants). The plaintiff’s vehicle allegedly was struck in the rear at some point in a series of collisions that followed.

The plaintiff thereafter commenced this action to recover damages for personal injuries against the Bifulco defendants and the Meza defendants, among others. The Bifulco defendants moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. Crystina, and purportedly Abel, made a separate motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against Crystina (hereinafter the Meza motion). The Meza motion was supported by, among other things, a death certificate, which established that Abel had died prior to the commencement of the action. [*2] In an order entered May 9, 2022, the Supreme Court, inter alia, granted that branch of the Bifulco defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the Meza motion which was for summary judgment dismissing the complaint insofar as asserted against Crystina. The court also directed dismissal of the complaint insofar as asserted against Abel. The plaintiff appeals from so much of the order as granted that branch of the Bifulco defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the Meza motion which was for summary judgment dismissing the complaint insofar as asserted against Crystina. We affirm the order insofar as appealed from.

Initially, we note that to the extent counsel purported to act on Abel’s behalf in this action, counsel’s actions were a nullity, since no attorney-client relationship existed ( see Constable v Staten Is. Univ. Hosp. , 221 AD3d 952 , 953 [2023]).

The Supreme Court properly granted that branch of the Bifulco defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. “The emergency doctrine acknowledges that when an actor is confronted with a sudden and unanticipated situation which leaves little or no time for deliberation and requires him [or her] to make a speedy decision without weighing alternative courses of conduct, the actor may not be liable for negligence if the actions taken are reasonable and prudent when evaluated in the context of the emergency conditions” ( Wade v Knight Transp., Inc. , 151 AD3d 1107 , 1109 [2017] [internal quotation marks omitted]). “Under appropriate circumstances, the existence of an emergency, as well as the reasonableness of the actor’s response to it, may be determined as a matter of law” ( id . at 1109-1110 [internal quotation marks omitted]).

The Bifulco defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that Hayley was confronted with an emergency not of her own making, had only seconds to react, and had virtually no opportunity to avoid a collision ( see id. at 1110; see also Hand v Ridge Volunteer Fire Dept., Inc. , 216 AD3d 923 , 924 [2023]; Estate of Cook v Gomez , 138 AD3d 675 , 677 [2016]). In opposition, the plaintiff failed to raise a triable issue of fact, and his speculative assertion that Hayley had enough time to take evasive action to avoid the collision was insufficient to defeat the Bifulco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

The Supreme Court also properly granted that branch of the Meza motion which was for summary judgment dismissing the complaint insofar as asserted against Crystina. “There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” ( Choudhary v DiSilvio , 225 AD3d 837 , 838 [2024] [internal quotation marks omitted]). Although Crystina had the right-of-way and was entitled to anticipate that other drivers would obey the traffic laws, she also had a duty to use reasonable care to avoid a collision ( see Desio v Cerebral Palsy Transp., Inc. , 121 AD3d 1033 , 1034-1035 [2014]; Pollack v Margolin , 84 AD3d 1341 , 1342 [2011]). Here, Crystina established, prima facie, that her vehicle did not collide with the plaintiff’s vehicle, or any other vehicle, and that she was able to regain control of her vehicle after it was struck ( see Biddy v Vanmaltke , 67 AD3d 845 , 846 [2009]; Lapadula v Sang Shing Kwok , 295 AD2d 406, 406 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact. Connolly, J.P., Wooten, Ford and Ventura, JJ., concur..