Supreme Court, Richmond County, February 6, 2023

Elefterakis, Elefterakis & Panek, New York City (Eileen Kaplan of counsel), for plaintiff.

Law Office of Nicole Lesperance, Westbury (Justin Adkins of counsel), for defendants.

Plaintiff, Yvette Fall, moves by notice of motion (seq No. 001) for an order granting her partial summary judgment on the issue of liability relating to a single-vehicle accident which occurred on April 7, 2018. In addition, plaintiff seeks to strike the affirmative defenses of "comparative negligence" and the "emergency doctrine" asserted in defendants' answer. In support of her motion, plaintiff has submitted the deposition testimony of both parties and a certified police accident report. Defendants Ryan Detomi (driver, hereinafter defendant) and John Detomi (owner) have submitted written opposition to the motion in its entirety and offer the deposition testimony of three nonparty witnesses who were passengers in the subject vehicle at the time of the accident.{**78 Misc 3d at 660}

Most of the facts that surround the happening of this single-vehicle accident are not disputed by either party. At the time of the accident, plaintiff, defendant and the other three occupants^[FN1] of the vehicle at issue, a 2007 Kia Sorento, were all students at Cazenovia College which is located near Syracuse, New York. The accident occurred just after midnight on the morning of April 7, 2018. The night before the accident four of the five occupants performed in a theatrical production of the play "Rent" at the college; the fifth occupant was in the audience. After the performance, the five occupants traveled together in the defendants' vehicle to a party. They left the college at around 10:00 p.m. and arrived at the party at 10:30 or 11:00 p.m. At his deposition defendant testified that when he got in his vehicle after the show it was "snowing, [with] very close to white-out conditions." Defendant testified that it took him approximately 20 minutes to drive to the party. As they traveled to the party the weather was "mixed precipitation" and the road was "pitch black." On his route the speed limit varied between 30 miles per hour to 55 miles per hour but defendant drove at an approximate speed of 15 to 20 miles per hour because of the weather conditions. The group reached the party safely.

The same group of passengers left the party at approximately 12:40 a.m. By that time the snow had been falling for several hours, and the storm had intensified. Plaintiff sat in the back seat of the vehicle and admittedly did not engage her seat belt. Defendant drove the same route that he took to the party, in the reverse direction. The accident occurred on "Bingley Road"^[FN2] which defendant described as a "country road" with a speed limit of 55 miles per hour. Defendant testified that he consistently maintained a speed of 15 to 20 miles per hour up to and including the time of the accident. The road from the party to the site of the accident was entirely downhill. Defendant engaged the "four-wheel drive" option available in his vehicle due to the weather conditions. Defendant testified that he could not see the roadway as it was covered in snow, sleet and ice,{**78 Misc 3d at 661} and had a difficult time seeing more than 10 feet ahead of him due to the falling snow. After traveling approximately one mile from the party the occupants of the defendants' vehicle observed an uninvolved vehicle stuck in a ditch on the side of a curve in the road. At least one of the passengers in defendants' vehicle believed that the stranded vehicle may belong to a cast member who left the party earlier. The occupants discussed whether they should stop and decided they should. Defendant engaged his breaks in an attempt to stop to assist the stranded cast member and began to pull over. Defendant admits that at or around this time plaintiff asked him to slow down. As defendant attempted to slow down his breaks "rattled under his foot" and his vehicle began to "fishtail." Defendant then lost control of his vehicle as it slid off the roadway, through a ditch and into an embankment, causing it to roll over onto its side.

Three nonparty witnesses^[FN3] were deposed during discovery. The transcripts of their testimony were offered in opposition to plaintiff's motion. Each of these witnesses was a passenger in the defendants' vehicle at the time of the accident. Each nonparty witness recalled the accident in a slightly different manner. However, the only significant difference between their testimony and the parties' testimony was the weather conditions on the way to the party. Both Mr. Leffingwell and Ms. Struble testified that the weather conditions on the way to the party were relatively clear while plaintiff and defendant both testified that it was snowing heavily. All three nonparty witnesses agreed that the weather was significantly worse on the return trip. The nonparty witnesses also agreed that defendant's speed ranged between 5 and 25 miles per hour as they traveled back to the college campus.

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. (See OTTY Cab Corp. v Nazir, 57 Misc 3d 158[A], 2017 NY Slip Op 51666[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017].) A movant's burden can be satisfied by the submission of sworn affidavits or deposition testimony in proper evidentiary form. (See Charlie Fox, Inc. v Diallo, 53 Misc 3d 144[A], 2016 NY{**78 Misc 3d at 662}Slip Op 51566[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016].) Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the nonmoving party to raise a material issue of fact as to whether there could be a nonnegligent explanation for the accident. (See Ubillus-Tambini v Ischakov, 51 Misc 3d 136[A], 2016 NY Slip Op 50570[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see also Schuster v Amboy Bus Co., 267 AD2d 448 [2d Dept 1999].) A court deciding a motion for summary judgment must view the evidence in a light most favorable to the nonmoving party. (See Tucubal v National Express Tr. Corp., 209 AD3d 788 [2d Dept 2022].) The burden of a court deciding a motion for summary judgment is not to resolve issues of fact, or determine matters of credibility, but merely to determine whether such issues exist. (See Dyckman v Barrett, 187 AD2d 553 [2d Dept 1992].)

The mere occurrence of a motor vehicle accident does not automatically require a finding of negligence, as there may be a nonnegligent explanation for the happening of an accident. (See Ramrattan v Pondfield Trip Serv., 269 AD2d 513 [2d Dept 2000]; see also Schuster v Amboy Bus Co., 267 AD2d 448 [2d Dept 1999].) The standard of care applicable to the operator of a motor vehicle is that which a reasonably prudent person would do under similar circumstances. (See Pinilla v City of New York, 136 AD3d 774 [2d Dept 2016]; see also Wright v O'Leary, 201 AD3d 1280 [3d Dept 2022].) A triable issue of fact may exist concerning the reasonableness of a driver's conduct even when an accident occurs. (See LaFond v City of New York, 245 AD2d 268 [2d Dept 1997]; see also Aldrich v Hagan, 243 AD2d 432 [2d Dept 1997].)

[1] Under the unique circumstances of this single-vehicle accident, plaintiff has failed to meet her initial burden of establishing an entitlement to summary judgment as a matter of law. In support of her motion, plaintiff makes general allegations that defendant was negligent for driving in the weather conditions that existed on the morning of April 7, 2018. In sum and substance, plaintiff alleges that the very act of driving was negligent because the lighting was dark, it was snowing heavily, and the roadway was very slippery and covered in snow. However, negligence cannot be inferred against defendant simply because he and his passengers (including plaintiff){**78 Misc 3d at 663} made the choice to drive home during a snowstorm. Plaintiff further alleges that it was negligent to attempt to pull over to check on the well-being of their castmate, but this too cannot establish negligence as a matter of law, and a finding to the contrary would certainly be against public policy. Finally, plaintiff alleges a violation of Vehicle and Traffic Law § 1180 (a) which provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing."

A proven violation of Vehicle and Traffic Law § 1180 (a) would require a finding that defendant was negligent as a matter of law. (See Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept 2014]; see also Coogan v Torrisi, 47 AD3d 669 [2d Dept 2008].) However, plaintiff has failed to prove that defendant violated the statute by operating his vehicle at an excessive rate of speed. (See Min Zhong v Matranga, 208 AD3d 439 [1st Dept 2022].) The motion record establishes that the speed limit on Bingley Road where the accident occurred was 55 miles per hour. However, defendant testified that he was traveling 15-20 miles per hour and there is no evidence in the record to the contrary. The nonparty witnesses' testimony placed the defendant's speed in this range, and plaintiff could not recall his speed. It cannot be said, as a matter of law, that driving 15-20 miles per hour in a 55 mile per hour zone was not a reasonable reduction in speed to account for the weather conditions, regardless of whether an accident occurred. (See Simpson v Eastman, 300 AD2d 647 [2d Dept 2002]; see also Miller v Steinberg, 164 AD3d 492 [2d Dept 2018]; Orcel v Haber, 140 AD3d 937 [2d Dept 2016].) Defendant's inability to avoid an accident, standing alone, cannot serve as evidence that his speed was unreasonable. (See Moore v Bremer, 280 AD2d 729 [3d Dept 2001].)

Under the unique circumstances of this case, plaintiff failed to meet her initial burden of establishing that defendant was negligent as a matter of law. (See Matias v Bello, 165 AD3d 642 [2d Dept 2018].) Accordingly, plaintiff's motion must be denied without having to consider whether defendants' opposition papers were sufficient to raise a triable issue of fact. (See Manceri v Bowe, 19 AD3d 462 [2d Dept 2005]; see also Maloney v Farris, 117 AD3d 916 [2d Dept 2014].) However, if the court were to consider defendant's papers, it would find that they are sufficient to raise a triable issue of fact as to whether his actions{**78 Misc 3d at 664} were reasonably prudent under the circumstances. (See DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489 [2d Dept 2010]; see also Artis v Jamaica Buses, 262 AD2d 511 [2d Dept 1999].) It is a question of fact for a jury to determine whether defendant's speed on the snowy roadway violated section 1180 (a) of the Vehicle and Traffic Law. (See Pena v Spade, 145 AD3d 791 [2d Dept 2016].) When considering a motion for summary judgment, the court is constrained to consider the facts in a light most favorable to the nonmoving party, and the court's role is to find issues of fact, not resolve them. (See Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005].)

[2] In addition to seeking an order granting summary judgment on the issue of liability plaintiff further moves to strike the affirmative defenses of "comparative negligence" and the "emergency doctrine." That aspect of the motion is granted. There is no evidence in the motion record that plaintiff, a back seat passenger, could be comparatively negligent as a cause of the accident. The emergency doctrine is equally inapplicable. The emergency doctrine states that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, that actor may not be liable for negligence if his or her actions are reasonable and prudent when evaluated in the emergency context. (See Majid v New York City Tr. Auth., 128 AD3d 648 [2d Dept 2015].) While on first glace it appears that this doctrine may apply to the circumstances of this case, it is well established that such a defense may not be used in relation to snow and ice when the driver of a motor vehicle is aware of inclement weather. (See Matos v Sanchez, 147 AD3d 585 [1st Dept 2017].) Even considering the evidence in a light most favorable to defendant, the presence of ice and snow on a hill cannot be deemed a sudden and unexpected emergency in light of the ongoing storm. (See Caristo v Sanzone, 96 NY2d 172 [2001].) Moreover, to the extent that defendant makes a novel argument that the presence of a vehicle in distress could serve as a qualifying emergency, the testimony in the motion record reveals that defendant and his passengers had a discussion, and openly deliberated whether they should stop to assist their stranded cast member before deciding that they should. The emergency doctrine is only applicable when there is little or no time for thought, or deliberation, and an actor must make a "split-second" decision. Such was not the case here. Although the affirmative defenses identified by plaintiff must be stricken{**78 Misc 3d at 665} for the reasons set forth above, nothing in this decision should be construed to preclude defendants from offering a full defense on the issue of liability, i.e., whether defendant Ryan Detomi was negligent.

Therefore, for the detailed reasons set forth above plaintiff's motion for summary judgment on the issue of liability is denied. However, plaintiff's application to strike the affirmative defenses of "comparative negligence" and the "emergency doctrine" is granted.