The following papers were read and considered by the Court on this motion:
Claimants’ Notice of Motion, Claimants’ Affidavit in Support,
Claimants’ Affirmation in Support, Claimants’ Motion Brief in
Support with annexed Exhibits 1-8, Defendant’s Affirmation in Opposition
with annexed Exhibits A-K and Claimants’ Affirmation in Reply with annexed
Exhibit 1. Claimants, Linda D. Ogeka and Joseph Ogeka, have brought this motion
pursuant to CPLR 3212 seeking an order granting summary judgment in their favor.
Claimants allege that on January 24, 2007 at approximately 9:00 a.m., claimant,
Linda D. Ogeka
, was operating a motor vehicle
on Suffolk County Route 104. Claimant describes Route 104 as a “two way
street with one lane travelling in each direction.” Claimant states that
she proceeded north on Route 104 for approximately one-half a mile before she
encountered a motor vehicle owned by defendant, the State of New York. At that
time defendant’s vehicle was being operated by New York State Police
Officer Jose A. Rosado. Claimant asserts that she observed defendant’s
vehicle “approximately 5 seconds before the contact between the two
vehicles.” She describes defendant’s vehicle as traveling south on
Route 104 when it “fishtail[ed] out of control.” She states that
defendant’s vehicle did not have its emergency lights and sirens on prior
to the accident. She observed that at the time of the accident the weather was
clear, sunny and cold. She contends that she applied her brakes and attempted
to turn her steering wheel to the right to avoid striking defendant’s
vehicle. Claimant continues that, “[i]n a split second” she
observed defendant’s vehicle spin out of control and cross into the
northbound lane of Route 104. Defendant’s vehicle then struck
claimant’s vehicle “head on.” Claimant’s vehicle was
entirely in the northbound lane of Route 104 at the time of the accident.
Unfortunately, the motor vehicle accident resulted in the death of Officer
Rosado. Claimant states that she temporarily lost consciousness after the
accident. Claimant described the front end of her vehicle as being
“destroyed” and the front passenger side of defendant’s
vehicle as being severely damaged.
Claimants filed a Note of Issue in this matter on November 13, 2007.
In support of this motion claimant has submitted the relevant police accident
report, police report for fatal motor vehicle accidents, police investigation
photos as well as the written statements of claimant and a witness, George
Hummer who arrived at the accident scene immediately after the accident.
Claimant has also attached to her papers a copy of a video of the accident
recorded by a security camera on a building located directly across the street
from the scene of the accident.
The accident description in the police report denotes that claimant’s
vehicle was traveling northbound on Route 104 when the operator of
defendant’s vehicle lost control on “apparent black ice.”
Defendant’s vehicle then slid sideways into the northbound lane striking
Claimant’s written statement to the police filled out in the afternoon of
the accident states that claimant was traveling at approximately 40 - 45 miles
per hour prior to the accident. Claimant continued that “[i]t looked to
me that the police truck was sliding out of control due to the ice on the
roadway. I knew the roads were not so safe because I was out earlier in the
morning and realized it was icey [sic].”
George Hummer, a witness, stated in his statement to the police, that after the
accident occurred other vehicles were sliding on the roadway to avoid the
Claimant has established her prima facie entitlement to summary judgment
by submitting evidence showing that the operator of defendant’s vehicle
violated Vehicle and Traffic Law § 1126(a) by crossing over a double yellow
line into an opposing lane of traffic, thereby causing the collision (Scott v
Kass, 48 AD3d 785 [2d Dept 2008]; Snemyr v Morales-Aparicio, 47 AD3d
702 [2d Dept 2008]). This constitutes negligence as a matter of law unless
justified by an emergency situation not of the driver’s own making
Defendant argues that there are several questions of fact surrounding the
happening of the subject accident which require a denial of the present summary
judgment motion. Defendant’s most compelling argument concerns the
existence of black ice on the roadway.
Claimant in this matter described the weather on the date of the accident as
being clear, sunny and cold. She added that it had not snowed the day before the
accident. There is no indication that the operator of defendant’s vehicle
knew of or was confronted by a black ice condition on the roadway prior to the
accident. The weather conditions in this case differ markedly from those which
existed in the Caristo v Sanzone, 96 NY2d 172  and Gadon v
Oliva, 294 AD2d 397 [2d Dept 2002] cases. Additionally, Mr. Hummer’s
statement at the scene indicates that there may have been severe sun glare for
vehicles traveling southbound on Route 104 shortly after the accident. Thus, a
reasonable view of the evidence presented raises the question of whether the
operator of defendant’s vehicle was confronted with a sudden and
unexpected circumstance to warrant the imposition of the emergency doctrine
(Caristo v Sanzone, 96 NY2d 172 ; Rivera v New York City Tr.
Auth., 77 NY2d 322 ).
Defendant’s contentions concerning claimant’s conduct in avoiding
the motor vehicle accident are misplaced. Speculation that claimant could have
done something to avoid defendant’s vehicle which crossed over a double
yellow line is insufficient to defeat a motion for summary judgment (Scott v
Kass, 48 AD3d 785 [2d Dept 2008]; Snemyr v Morales-Aparicio, 47 AD3d
702 [2d Dept 2008]).
In response, claimant has attempted to establish that the operator of
defendant’s vehicle was traveling in excess of the posted speed limit
thereby eliminating the availability of the emergency doctrine in this case
(Jacobellis v New York State Thruway Authority
, 2008 WL 2209710 [2d Dept
2008]; Haughey v Noone
, 262 AD2d 284 [2d Dept 1999]). Claimant has
submitted with her reply documents a copy of the Collision Reconstruction
Findings Report written by New York State Police Investigator Christopher
Sweeney. Investigator Sweeney responded to the scene of the accident on January
24, 2007 at approximately 9:46 a.m. Investigator Sweeney indicated that the
speed limit at the location of the accident was 55 m.p.h. Investigator Sweeney
describes, inter alia
, the road conditions, the slope of the roadway, the
dimensions of the lanes of the roadway, the width of the paved shoulder to the
roadway and the unpaved area outside the roadway. Investigator Sweeney took a
witness statement from Sgt. Edward Seltenreich, Village of Quogue Police
Department, wherein Sgt. Seltenreich stated that he observed the roadway surface
as being wet and that ice patches were evident. Investigator Sweeney stated
that the weather conditions at the time of his arrival at the scene were clear
with an ambient air temperature of approximately 38 degrees Fahrenheit.
Investigator Sweeney made certain mathematical findings based on a tire mark
left on the roadway by defendant’s vehicle, the coefficient of friction on
the roadway and the video evidence. He concluded that defendant’s vehicle
was traveling at a minimum average speed of approximately 77.12 m.p.h. during
the first 50 feet of the “yaw.
He calculated the minimum average speed of defendant’s vehicle during the
second 50 feet of the yaw to be 64.10 m.p.h. Investigator Sweeney also analyzed
the Sensing Diagnostic Modules (SDM) from both vehicles in order to determine
the relative speeds of the vehicles. However, the speed data retrieved from the
SDMs apparently differs from Investigator Sweeney’s mathematical findings.
The Court is unfamiliar with many of the terms and calculations presented in the
SDM portion of the report. Thus, without the benefit of supporting expert
testimony, the Court is unable to determine the appropriate weight to be given
to the report.
The Court finds that claimant has failed to conclusively establish the
reliability and accuracy of the video evidence as well as the methodology and
conclusions set out in Investigator Sweeney’s unsworn report (Moore v
Tappen, 242 AD2d 526 [2d Dept 1997]; Read v Ellenville Natl. Bank, 20
AD3d 408 [2d Dept 2005]). Thus, there is a question of fact as to whether the
operator of defendant’s vehicle was faced with a sudden and unforeseen
emergency, not of his own making, and whether his response to that situation was
that of a reasonably prudent person (Caristo v Sanzone, 96 NY2d 172
). Consequently, the drastic remedy of summary judgment would be
inappropriate at this juncture.
Therefore, for the foregoing reasons, claimants’ motion for summary
judgment is denied.