Calendar Date: September 6, 2013
Burke, Scolamiero, Mortai & Hurd, LLP, Albany (Mark G. Mitchell of counsel), for appellants.
David N. Goldin, Albany, for respondent.
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from an order of the Supreme Court (McNamara, J.), entered November 19, 2012 in Albany County, which, among other things, denied defendants' motion for summary judgment dismissing the complaint.
At approximately 4:00 p.m. on the afternoon of May 17, 2010, plaintiff was traveling westbound on the shoulder of State Route 20 in the Town of Guilderland, Albany County in his motorized wheelchair. Defendant Stephen Suraci (hereinafter Suraci) also was traveling westbound on Route 20 in a vehicle owned by his father, defendant Anthony Suraci Jr. As plaintiff and Suraci approached Prospect Hill Cemetery, another westbound vehicle — traveling in the passing lane — swerved into Suraci's lane. Suraci responded by turning his vehicle toward the adjacent shoulder and, in the course of doing so, struck plaintiff's wheelchair.
Plaintiff thereafter commenced this action against defendants seeking to recover for personal injuries allegedly sustained when he was ejected from his wheelchair. Following joinder of issue and discovery, defendants, among other things, moved to amend their answer to assert the affirmative defense of lack of capacity to sue and for summary judgment dismissing the complaint. Supreme Court, insofar as is relevant here, granted defendants' motion for leave to amend but denied their motion for summary judgment dismissing the complaint. This appeal by defendants ensued.
We affirm. Initially, we reject defendants' assertion that plaintiff lacks the capacity to sue by virtue of his failure to disclose his personal injury claim in his chapter 13 bankruptcy schedule of assets. "While [c]hapter 7 and [c]hapter 11 debtors lose standing to maintain civil suits — which must be brought and/or maintained by their bankruptcy trustees — it is clear that [c]hapter 13 debtors like plaintiff are not subject to this restriction" (M & T Mtge. Corp. v White, 736 F.Supp.2d 538, 554 [ED NY 2010] [internal quotation marks and citations omitted]; see Olick v Parker & Parsley Petroleum Co., 145 F.3d 513, 515-516 [2d Cir 1998]; Kenney v National Fuel Gas Distrib. Corp., 8 A.D.3d 989, 989 ; see also In re Dawnwood Props./78, 209 F.3d 114, 116 [2d Cir 2000]; Matter of Miller [Berti], 1 A.D.3d 885, 886 ; Giovinco v Goldman, 276 A.D.2d 469, 469 ; but see Gray v City of New York, 58 A.D.3d 448, 449 , lv dismissed and denied 12 N.Y.3d 802 ) . Accordingly, Supreme Court properly concluded that plaintiff's omission in this regard was not fatal.
Defendants' alternative ground for dismissal, which is premised upon an application of the emergency doctrine, is equally unpersuasive. "Under the emergency doctrine, a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context" (Cancellaro v Shults, 68 A.D.3d 1234, 1236 , lv denied 14 N.Y.3d 706  [internal quotation marks and citations omitted]; see Shetsky v Corbett, 107 A.D.3d 1100, 1101 ; Hubbard v County of Madison, 93 A.D.3d 939, 940 , lv denied 19 N.Y.3d 805 ). The reasonableness of the driver's conduct, as well as whether he or she could have done something to avoid the accident, typically present questions of fact for a jury to resolve (see Copeland v Bolton, 101 A.D.3d 1283, 1285 ; Schlanger v Doe, 53 A.D.3d 827, 828 ; Aloi v County of Tompkins, 52 A.D.3d 1092, 1094 ; Dumas v Shafer, 4 A.D.3d 720, 722 ). Thus, in order to be granted summary judgment in this regard, "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 that he or she could not have done anything to avoid the collision" (Cahoon v Frechette, 86 A.D.3d 774, 775 ; see Shetsky v Corbett, 107 A.D.3d at 1101-1102). Defendants failed to meet that burden here.
Suraci's affidavit, together with his examination before trial testimony and the affidavit of a nonparty witness, established that as Suraci was proceeding west on Route 20 in heavy traffic, another vehicle suddenly came into his lane of travel, prompting him to "hit the brake[s] and move to the right, " whereupon — "one to two seconds" later — he "clipped" plaintiff's motorized wheelchair. Although such proof indeed establishes that Suraci played no role in the creation of the underlying emergency, viewing the evidence in the light most favorable to plaintiff (see Calhoon v Frechette, 86 A.D.3d at 775), we find that a question of fact remains as to the reasonableness of Suraci's response thereto — particularly in view of Suraci's examination before trial testimony, wherein he stated that he "never saw" plaintiff prior to impact. As Suraci's concession in this regard raises "a possible factual issue as to whether he was paying reasonable attention" (Schlanger v Doe, 53 A.D.3d at 829), defendants' motion for summary judgment dismissing the complaint was properly denied — regardless of the sufficiency of plaintiff's opposing papers.
Lahtinen, J.P., Stein and McCarthy, JJ., ...