SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

290 

CA 11-01493 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

KRISTINE SIMMONS-KINDRON, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

1218770 ONTARIO INC., DOING BUSINESS AS FYKE 

TRADING CO., VICTOR J. NICKERSON, 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANT. 

 

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (ERIC S.

BERNHARDT OF COUNSEL), FOR DEFENDANTS-APPELLANTS. 

DAVID W. POLAK ATTORNEY AT LAW, P.C., WEST SENECA (DAVID W. POLAK OF

COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Joseph R.

Glownia, J.), entered October 7, 2010 in a personal injury action. 

The order denied the motion of defendants 1218770 Ontario Inc., doing

business as Fyke Trading Co., and Victor J. Nickerson for summary

judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

and the complaint against defendants 1218770 Ontario Inc., doing

business as Fyke Trading Co., and Victor J. Nickerson is dismissed. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained when the vehicle she was driving was rear-ended

by a truck owned by 1218770 Ontario Inc., doing business as Fyke

Trading Co., and driven by Victor J. Nickerson (collectively,

defendants). We agree with defendants that Supreme Court erred in

denying their motion for summary judgment dismissing the complaint

against them based on the emergency doctrine. That doctrine 

“ ‘recognizes that when [a driver] is faced with a sudden and

unexpected circumstance which leaves little or no time for thought,

deliberation or consideration, or causes the [driver] to be reasonably

so disturbed that [he or she] must make a speedy decision without

weighing alternative courses of conduct, the [driver] may not be

negligent if the actions taken are reasonable and prudent in the

emergency context’ ” (Caristo v Sanzone, 96 NY2d 172, 174, quoting

Rivera v New York City Tr. Auth., 77 NY2d 322, 327, rearg denied 77

NY2d 990). “[I]t generally remains a question for the trier of fact

to determine whether an emergency existed and, if so, whether the

[driver’s] response thereto was reasonable” (Schlanger v Doe, 53 AD3d
-2- 290 

CA 11-01493 

827, 828; see Heye v Smith, 30 AD3d 991, 992; Esposito v Wright, 28

AD3d 1142, 1143). Nevertheless, summary judgment is appropriate 

“ ‘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’ ” (McGraw v Glowacki, 303 AD2d 968, 969; see Ward v

Cox, 38 AD3d 313, 314).

Defendants met their initial burden of establishing that

Nickerson was confronted with an emergency situation when plaintiff

suddenly entered his lane and that there was nothing he could have

done to avoid the collision (see Hotkins v New York City Tr. Auth., 7

AD3d 474, 475; Lucksinger v M.T. Unloading Servs., 280 AD2d 741, 741-

742; cf. Fratangelo v Benson, 294 AD2d 880, 881). In support of the

motion, defendants submitted the deposition testimony of plaintiff and

Nickerson. Plaintiff, who was traveling in the left lane of traffic,

admitted that she moved her vehicle to the right lane when traffic in

front of her slowed down, but that she failed to observe Nickerson’s

truck in the right lane. Nickerson testified that he observed

plaintiff brake and drive directly in front of his truck. He further

testified that he had no time to apply his brakes or to take any

evasive action. Indeed, he was moving his foot to the brake pedal

when the impact occurred.

In opposition to the motion, plaintiff failed to raise a triable

issue of fact whether Nickerson “was negligent in failing to take

evasive action to avoid the collision” (Lupowitz v Fogarty, 295 AD2d

576, 576). Plaintiff submitted the deposition testimony of another

defendant driver who was behind the truck and who testified that

Nickerson may have been traveling 60 to 65 miles per hour immediately

before the accident. She failed to demonstrate, however, that

Nickerson could have avoided the collision regardless of his speed

(see Lucksinger, 280 AD2d at 742). Further, plaintiff’s expert

affidavit was insufficient to raise a triable issue of fact with

respect to the reasonableness of Nickerson’s actions (see Wasson v

Szafarski, 6 AD3d 1182, 1183).

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court