The following numbered papers were read on this motion: NYSCEF Document Numbers 8-19.

Upon the foregoing papers, and the Court having elected to determine the within motion on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), Section 6 (Personal Appearances) ("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.)," and due deliberation having been had thereon,

It is hereby ORDERED as follows:

The motion by Plaintiff Antwan Massiah (hereinafter "Massiah") seeking summary judgment with respect to the issue of liability is GRANTED.

The instant action arises out of a motor vehicle accident on Nov. 8, 2021 at or near the intersection of Sheffield Avenue and New Lots Avenue in Kings County (see NYSCEF Doc No. 13 ¶4). Plaintiff was a passenger in a taxi when Defendant driver allegedly struck a double-parked vehicle while using a cell phone and looking in the rearview mirror (see NYSCEF Doc No. 10 ¶¶ 8-9). Plaintiff contends Defendant failed to provide a non-negligent explanation for the collision. Defendant, however, argues that he was faced with a sudden emergency when a car in a driveway threatened to back into Defendant, forcing him to move forward and strike the [*2]double-parked car at 5 miles per hour (see NYSCEF Doc No. 15, Latouche tr at 21, lines 10-20).

"A nonnegligent explanation [for a rear-end collision] may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause" (Ortiz v Hub Truck Rental Corp., 82 AD3d 725, 726 [2d Dept 2011]; see Orcel v Haber, 140 AD3d 937 [2d Dept 2016). Under the emergency doctrine, "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 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" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; see Weber v Monsey New Sq. Trails Corp., 191 AD3d 929 [2d Dept 2021]). However, the emergency doctrine does not apply where the actor "encounters a known, foreseeable hazard which [they] in fact observed enter [their] path prior to the accident or where [they] fail to be aware of the potential hazards presented by traffic conditions, including stoppages" (Freder v Costello Indus., Inc., 162 AD3d 984, 986 [2d Dept 2018] [internal quotation marks omitted]). "Both the existence of an emergency and the reasonableness of a party's response to it generally present issues of fact" (Bravo v Vargas, 113 AD3d 579, 581 [2d Dept 2014]; see Fergile v Payne, 202 AD3d 928, 931 [2d Dept 2022]). However, not every claim of an emergency situation creates a an issue of fact (e.g. Caristo v Sanzone, 96 NY2d 172 [2001]).

Here, Defendant failed to provide a non-negligent explanation for the collision as the claimed emergency resulted from Defendant's own actions. By Defendant's own admission at deposition, he was aware of the double-parked car upon stopping to pick up Plaintiff (see NYSCEF Doc No. 15, Latouche tr at 19, lines 22-24) and caused the accident by lifting his foot from the brake (see id. at 22, line 7) for an instant which caused the vehicle to strike the double-parked car at 5 miles per hour (see id. at 21, lines 18-19; see Freder, 162 AD3d 984):

Q. Where were you looking when the contact took place with the double parked car?

A. Okay. I was looking at the car that was in the driveway where the guy got into his car and blew his horn. I was looking at that direction. Then suddenly I lift my foot off and hit that car.

(Id. at 22, lines 2-7 [emphasis added])

Thus, Defendant was looking elsewhere when he took his foot off the brake, making him the proximate cause of the collision into the double-parked vehicle.

Even if, arguendo, Defendant faced an emergency situation, it seems unreasonable to imagine any driver would choose to strike a double-parked car which they had notice of instead of drive around it (see Bravo, 113 AD3d at 581).

Defendant Armong Latouch therefore failed to make out a prima facie claim of a reasonable response to an emergency situation. Consequently, Plaintiff's prima facie case showing with respect to liability remains unrebutted. Plaintiff's motion for summary judgment on the issue of liability is GRANTED.