The following papers numbered 1 to 13 read on this motion for an order (a) pursuant to CPLR §3212 awarding summary judgment to the defendants, Ean Holdings LLC, Ean Holdings LLC d/b/a Enterprise, Elrac LLC, and Aidong Ma; and (b) dismissing plaintiff's complaint.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition.....................................................5 -9

Affirmation in Opposition.....................................................10 - 11

Reply Affirmation.................................................................12 - 13

Defendants Ean Holdings LLC, Ean Holdings LLC d/b/a Enterprise, Elrac LLC, and Aidong Ma move for an order pursuant to CPLR §3212 granting summary judgment to the moving defendants and dismissing plaintiff's complaint.

Summary judgment motions may be made by any party to an action after the issue has been joined. CPLR 3212 (a). To meet its burden for summary judgment movant must foreclose any genuine issue of material fact showing it is entitled to a judgment as a matter of law. (Bush v. St. Clare's Hosp., 82 N.Y 2d 738 [1993] (reasoning that if a question of fact exists the court is precluded from granting a summary judgment motion); Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985]; Zuckerman v. New York, 49 NY2d 557 [1980].) To do so "the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate all material issues of fact from the case." (Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985].) According to the Court of Appeals,

"one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49 NY2d 557 (1980).

Furthermore, as the matter involves a motor vehicle accident, any violation of the Vehicle and Traffic law will be considered negligence as a matter of law by the violator. (Briggs v. Russo, 98 AD3d 547 [2nd Dept. 2012]; Francavilla v. Doyno, 96 AD3d 714 [2nd Dept. 2012]; Duran v. Simon, 83 AD3d 654 [2nd Dept. 2011].)

The Emergency doctrine establishes that, [*3]

"when an actor 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 speed decision without weighting the alternative course of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context." (Rivera v. New York City Tr. Auth., 77 NY2d 322 [2nd Dept. 2012].)

The existence of an emergency situation does not "automatically absolve one from liability for his conduct." Ferrer v. Harris, 55 NY2d 285 [1982]; see also Alvarado v. New York City Transit Authority, 106 AD3d 845 [2nd Dept.]; Weiss v. Metropolitan, 106 AD3d 727 [2nd Dept. 2013].) The standard for ones conduct in an emergency situation "remains that of a reasonable man under the given circumstances, except that the circumstances have changed." Ferrer v. Harris, 55 NY2d 285 [1982].)

Here, neither party is disputing whether the defendant Figueroa created an emergency situation for Ms. Ma as it is well settled that "[a] driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over onto oncoming traffic. Such an event constitutes a classic emergency situation, thus implicating the "emergency doctrine." (Gajjar v. Shah, 31 AD3d 377 [2nd Dept. 2006]; see Lopez v. Young, 69 AD3d 724 [2nd Dept. 2012]; see also Ardila v. Cox 88 AD3d 829 [2nd Dept. 2011].) Thus, the question is whether an issue of material fact exists as to Ms. Ma's reasonableness in light of the emergency situation created by co-defendant Figueroa.

Generally, "[b]oth the existence of an emergency and the reasonableness of a party's response thereto will ordinarily present questions of fact." (Williams v City of New York, 88 AD3d 989, 990 [2nd Dept 2011].) The two drivers, Ms. Ma and Figueroa, both confirm that Ms. Ha did not apply the brakes or swerve to avoid Figueroa's car. It may have been unreasonable for Ms. Ma to swerve or apply her breaks given the circumstances. The Second Department has generally held that summary judgment is inappropriate absent clear evidence of a reasonable response by the movant in an emergency situation. (Summers v. Stedford, 299 AD2d 476 [2nd Dept. 2002] (denying summary judgment when "no evidence as to whether the defendant's actions in responding to the emergency were reasonable under the circumstances" existed); Babcock v. Roche, 262 AD2d 512 [2nd Dept. 1999] (finding summary judgment should have been denied when no evidence existed that plaintiff's actions were reasonable in the emergency situation created by defendant's vehicle crossing a double yellow line); McNally v. Fitzgerald, 260 AD2d 355 [2nd Dept. 1999].)However, in an emergency situation created by a vehicle crossing a double yellow line, the Second Department has more recently held that "speculation that the driver in the opposing lane of traffic could have done something to avoid a vehicle crossing over a double yellow line is insufficient to defeat a summary judgment." (Eichenwald v. Chaudhry, 17 A.D. 403 [2nd Dept. 2005]; Gadon v. Oliva, 294 AD2d 397 [2nd Dept. 2002]. Therefore, mere speculation that Ms. Ma improperly failed to brake or swerve, given the emergency situation created by a vehicle crossing a double yellow line, is insufficient to defeat a motion for summary judgment.

Bernice D. Siegal J.S.C.