By summons and complaint filed November 1, 2007, plaintiff commenced this action to recover for wrongful death and conscious pain and suffering suffered by his father when he was killed during an August 11, 2002 accident on Interstate 88 in Otsego County. Defendant Bonnie Garrity now moves for summary judgment dismissing the complaint and cross claims against her. Plaintiff opposes the motion. [*2]

The decedent died intestate, survived by two children, plaintiff and his sister. When his father died, plaintiff was fourteen years old and his parents were divorced.This action was not commenced until after plaintiff was appointed administrator of his father's estate in September 2007.Defendant argues that both plaintiff's cause of action for personal injuries suffered prior to his death and his wrongful death cause of action are untimely.

A cause of action for personal injury must be commenced within three years from the date of the injury (CPLR 214(5)).A cause of action for wrongful death must be commenced within two years from the date of death (EPTL 5-4.1). Generally, however, the statute of limitations is tolled where "a person entitled to commence an action is under a disability because of infancy... at the time the cause of action accrues (CPLR 208). Here, defendant Garrity claims that the plaintiff's wrongful death cause of action is untimely because it was commenced more than two years after Mr. Hallenbeck's death and the infancy toll does not apply.

A wrongful death cause of action must be brought by the decedent's "personal representative" (EPTL 5- 4.1). The "personal representative" is one who has "received letters to administer the estate of a decedent" (EPTL 1-2.13). Here, the plaintiff and his sister as the sole distributees of their father's estate (EPTL § 1-2.5; EPTL §4-1.1), had a right to receive letters of administration (EPTL 1001(1)[b]) but for their infancy at the time of their father's death (SCPA 707 [1](a)).In this circumstance, where the sole distributees are infants, the toll provided by CPLR 208 applies "until the earliest moment that there is a personal representative or potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first" (Hernandez v. Morales, 78 NY2d 687 [1991]). Contrary to defendant's argument, because neither plaintiff's mother nor any other relative of plaintiff was a "potential personal representative", no one was "duty bound" to commence this action on behalf of the plaintiff or his sister (Baker v. Bronx Lebanon Hosp. Ctr, 53 AD3d 21 [2008]; Boles v. Sheehan Memorial Hospital, 265 AD2d 910 [1999]). Accordingly, the Court finds that CPLR 208 applies and defendant's motion to dismiss the wrongful death cause of action is denied.

Defendant also contends that the plaintiff's cause of action for pain and suffering is untimely.This Court agrees.The infancy toll discussed in Hernandez, (Supra), applicable in wrongful death actions where the sole distributee is an infant, does not apply in a personal injury action (Heslin v County of Greene, 14 NY3d 67 [2010]). Accordingly, plaintiff's first cause of action is dismissed as untimely.

Having found that the wrongful death claim is timely, it is necessary to consider defendant's claim that the complaint should be dismissed based on the emergency doctrine.

A defendant may invoke the "emergency doctrine" if he or she, "... is faced with a sudden and unexpected 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', provided the [defendant] has not created the emergency" (Caristo v. Sanzone, 96 NY2d 172 [citing Rivera v New York City Tr. Auth., 77 NY2d 322). To obtain 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 [*3]that he or she could not have done anything to avoid the collision" (Cahoon v Frechette, 86 AD3d 774 [2011]).

As part of her submissions, defendant submits an autopsy report indicating that the accident happened at approximately 1:17 a.m. According to the report, the decedent, who was travelling on Interstate 88 on his motorcycle, hit a deer and was thrown to the highway. He was then struck by two cars and a tractor trailer.

At her examination before trial, defendant testified that she was driving home after having dinner with a friend. She recalled that it was a "pitch black night" (p. 12). As she approached the accident site, she observed "a tractor-trailer with its lights on and...a bunch of other lights all over the place" (p. 7). She turned down her high beams and slowed down (Id.). As she got closer, she saw the tractor trailer pulled over on the right hand side of the road. She testified that she moved toward the left-hand lane and, "[w]hen [she] got to the center, I saw — it looked like a stuffed shirt... I thought kids had thrown a shirt in the road. When I saw that I quickly stepped on the brake and turned to the left to try to miss the object that was in the road" (p. 13).Defendant testified that the decedent's body was lying right at the center line and that she did not see it until it was "right on the vehicle" as she was crossing from the right to the left lane (p. 14). Defendant recalled that even with headlights on, it was, "so dark [she] could not see anything" (p. 15). As soon as she saw the decedent in the road, she, "[i]mmediately ... stood on the brake and turned quickly", the right front of her car hit the decedent's body (p. 21), causing her car to flip (p. 15).

The Court finds that defendant has established prima facie entitlement to summary judgment as a matter of law."A driver is not obligated to anticipate a body lying in the roadway, in the direct path of his motor vehicle. Such an event constitutes a classic emergency situation, implicating the "emergency doctrine"'" (Lonergan v. Almo, 74 AD3d 902 [2010] [quoting Marsch v. Cantanzaro, 40 AD3d 941 [2001]). In response, plaintiff submits his attorney's affirmation wherein he asserts that there is a question of fact with regard to whether defendant "still could have avoided hitting the decedent" because she acknowledged seeing the tractor trailer lights and the decedent's body in the road (¶ 9).

In general, an affirmation by an attorney without "personal knowledge of the salient facts" has no evidentiary value and is thus not sufficient to defeat a motion for summary judgment (Hubbard v. County of Madison, __ AD3d __ , 2012 NY Slip Op 1543 [March 12, 2012]). Here, even if, as plaintiff's attorney contends, other drivers were able to avoid hitting the decedent, plaintiff offers no evidence that the defendant's actions were unreasonable under the circumstances.Speculative claims with regard to how a driver could have reacted in order to avoid a collision are not sufficient to defeat a prima facie showing of summary judgment (Lonergan, Supra; Cancellaro v Shults, 68 AD3d 1234 [2009] lv. den. 14 NY3d 706 [2010] ).

Accordingly, based on the foregoing, it is

ORDERED AND ADJUDGED that defendant's motion for summary judgment dismissing plaintiff's first cause of action as untimely is granted; and it is further

ORDERED AND ADJUDGED that defendant's motion for summary judgment dismissing the wrongful death cause of action and the cross claims against her is granted.This [*4]Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorneys for defendant.The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and notice of entry.

SO ORDERED!

ENTER.

Dated: Albany, New York

March, 2012

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1)Notice of Motion dated October 3, 2011 with Affirmation in Support (Jonathan M. Bernstein, Esq.) with Exhibits A-M and Memorandum of Law;

(2)Affirmation in Opposition dated October 25, 2011 (Adam H. Rosenblum, Esq.) with Memorandum of Law;

(3)Reply Affirmation dated November 3, 2011 (Jonathan M. Bernstein, Esq.).