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NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
____--------_________________________________------- __--. -----------X
MARIA LERNER and KEITH LERNER, IndeX No. 607333/2020
Plaintiff(s),
- against - AFFIRMATION
IN SUPPORT
SEAN A. MCLAUGHLIN, TOWN OF OYSTER BAY,
LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC.
Defendant(s).
------__________--------------------------- - ---------------X
JEFF R. THOMAS, an attorney duly admitted to practice law before the Courts of the
State of New York and aware of the penalties of perjury, hereby affirms the following, upon
information and belief:
1. I am a member of the law firm of GALLO VITUCCI KLAR LLP, attorneys for the
defendants LINCOLN D. ELLIOTT (hereinafter "Elliot") and STRICKLY SUFFOLK, INC.
(hereinafter "Strickly") and as such, I am fully familiar with all the facts and circumstances
pertaining to the within litigation, the source of my knowledge being a file maintained by this law
firm in the defense of this action and my personal handling of this litigation.
2. This affirmation is submitted in support of the within motion for an Order pursuant
to CPLR §3212 granting Elliot and Strictly summary judgment dismissing the complaint and all
cross-claims on the grounds that plaintiffs MARIA LERNER and KEITH LERNER (hereinafter
"Lerner") have failed to establish liability on the part Elliot and Strictly for this accident, and
granting such other and further relief as this Court deems just and proper.
SUMMARY OF ARGUMENT
3. It is posited that Elliot was faced with an emergency situation not of his own
making, in that, the Lerner vehicle traveling northbound on North Broadway Road crossed over
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the double yellow lines into the opposing southbound lanes of travel within seconds after swerving
co-defendants'
to avoid impact with the vehicle as it entered onto northbound North Broadway
from the intersection of Boston Road without stopping at the stop sign, causing the Lerner vehicle
to collide with the Elliot vehicle which was traveling entirely within the right lane of southbound
North Broadway.
4. The cross-over of the Lerner vehicle over the double yellow lines into the opposing
lanes of traffic was the proximate cause of the occurrence and Elliot and Strickly bear no liability
for the accident.
5. Clearly, the evidence submitted in support of Elliot and Strickly's motion for
summary judgment supports a finding that Elliot was faced with an emergency situation, not of his
own making, and one which was unforeseen. The cross-over of the Lerner vehicle and subsequent
impact which ensued is uncontroverted. It is also undisputed that the impact between the Lerner
vehicle and Elliot vehicle occurred within 1-2 seconds of the cross-over of the Lerner vehicle into
opposing traffic.
6. Based on the foregoing, the emergency doctrine applies in this case and Elliot and
Strickly acted reasonably under such circumstances. Summary Judgment must be granted as Elliot
and Strickly were not the proximate cause of the accident, were not negligent, and have no liability
for the happening of the occurrence.
RELEVANT PROCEDURAL HISTORY
Lerners'
7. This is an action to recover for personal injuries allegedly sustained by the
in a multi-vehicle accident that allegedly occurred on Thursday, November 15, 2018 at 3:55 p.m.
on North Broadway near the intersection of Boston Avenue in the Hamlet of North Massapequa
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"A"
and in the Town of Oyster Bay, New York. Annexed hereto as Exhibit is certified copy of the
Police Report.
8. The Lerner's commenced the action by filing a Summons and Complaint in
"B"
Supreme Court, Suffolk County on September 30, 2019. Annexed hereto as Exhibit is a copy
of the Summons and Complaint.
9. The co-defendants SEAN A. MCLAUGHLIN (hereinafter "McLaughlin") and
TOWN OF OYSTER BAY (hereinafter "Oyster Bay") joined issue on or about November 19,
"C" co-defendants'
2019. Annexed hereto as Exhibit is a copy of Answer.
10. Elliot and Strickly joined issue on or about February 3, 2020. Annexed hereto as
"D"
Exhibit is a copy of Elliot and Strickly's Answer.
11. The Supreme Court, Suffolk County issued an Order granting McLaughlin and
Oyster Bay's motion to change venue to Supreme Court, Nassau County. Amexed hereto as
"E"
Exhibit is a copy of the Order and Court Notice confirming transfer to Supreme Court, Nassâü
County.
12. No depositions have been held and the Note of Issue has not been filed.
STATEMENT OF RELEVANT FACTS
13. As stated supra, this action arises out of a multi-vehicle accident that allegedly
occurred on North Broadway near the intersection of Boston Avenue in the Hamlet of North
Massapequa and in the Town of Oyster Bay, New York. (See Exhibit "A").
14. North Broadway is a two-way street separated by a double yellow line with two
"F"
lanes traveling in each direction separated by dotted white lines. Annexed hereto as Exhibit is
an Affidavit from Elliot.
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15. At the time of the accident, Mrs. Lerner was driving a 2013 Chevrolet bearing New
York State license plate number AWU3825 in which Mr. Lerner was a front seat passenger while
McLaughlin was driving a 2015 International dump truck bearing New York State license plate
number AM8735 which was owned by Oyster Bay. (See Exhibit "A").
16. At the time of the accident, Elliot was driving a 2009 Lincoln bearing New York
State license plate number 14861TY which was owned by Strictly that was in good condition and
did not have any mechanical problems. (See Exhibit "F").
17. Prior to the accident, Elliot was traveling in the right lane on southbound North
Broadway for about ten minutes at approximately 15 mph because of snowy conditions while Mrs.
Lerner was traveling northbound on North Broadway in the right lane. (See Exhibit "A").
18. While Elliot was traveling in the right lane on southbound North Broadway, the
dump truck driven by McLaughlin with an attached snowplow blade entered onto northbound
North Broadway from the intersection of Boston Road without stopping at the stop sign causing
the Lerner vehicle to swerve to the left from the right lane of northbound North Broadway and
within 1-2 seconds, cross-over the double yellow lines into the right lane of southbound North
Broadway colliding with the front end of the vehicle being driven by Elliot. (See Exhibit "F").
ARGUMENT
POINT I
Defcadants Lincoln D. Elliott And Strickly Suffolk. Inc. Were Faced With an Emergeng
Situation Not of Their Own Makine
19. It is axiomatic that when one is faced with an emergency situation not of his own
making, the operator of a vehicle is entitled to an emergency charge as long as he acted reasoñãbly
under the circumstances. See Wenz v. Shafer, 293 A.D.2d 742, 742 N.Y.S.2d 318 (2d Dept. 2002).
20. In Wenz, plaintiff was driving south during a rainstorm and attempted to move into
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the center lane to avoid tree branches that had fallen on the roadway and in doing so, lost control
of his vehicle. Id. The defendant was also traveling south and as he passed through the tree
plaintiffs'
branches, he came upon vehicle and another vehicle spinning out of control. Id. The
defendant attempted to avoid the two spinning vehicles but collided head-on with plaintiff's
vehicle. Id at 743. According to plaintiff, his vehicle had come to a stop as it came out of the spin
and was struck by the defendant. Id at 743. However, the defendant claimed that his vehicle had
nearly come to a stop on the shoulder of the road when it was struck by plaintiff's vehicle. Id at
743. The Appellate Division held the trial court properly granted summary judgment to the
defendant based on the emergency doctrine as he was faced with an emergency situation not of his
own making, when he was confronted with the spinning vehicles, and he acted reasonably under
the circumstances. Id at 743.
21. The emergency doctrine recognizes that when a party is faced with a sudden and
unexpected circumstance not of his or her own making, which leaves little or no time for thought,
deliberation, or consideration, or causes the party to be reasonably so disturbed that the party must
make a speedy decision without weighing alternative courses of conduct, the party may not be held
negligent, if the actions taken are reasonable and prudent in the emergency context, even if itlater
appears that the party made a wrong decision, provided the party has not created the emergency
See Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334 (2001); See Kuci v. Manhattan & Bronx
Surface Tr. Operating Auth., 88 N.Y.2d 923, 646 N.Y.S.2d 788 (1996); See Pawlukiewicz v.
Boisson, 275 A.D.2d 446, 712 N.Y.S.2d 634 (2d Dept. 2001).
22. Moreover, the emergency doctrine provides that, where a sudden and unexpected
circumstance leaves a person without time to contemplate or weigh alternative courses of action,
that person cannot reasonably be held to the standard of care required of one who has had a full
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opportunity to reflect, and therefore should not be found negligent unless the course chosen was
unreasonable or imprudent in light of the emergent circumstances. See Bello v. Transit Auth., 12
A.D.3d 58, 783 N.Y.S.2d 648 (2d Dept. 2004).
23. Although the existence of an emergency and the reasonableness of a party's
response to itmay present questions of fact, they may, in appropriate circumstances, be determined
as a matter of law.
24. In the instant matter, the evidence supports the fact that the accident involved a
"cross-over" situation."
which caused an "emergency The evidence as to the sequence of events
culminating in the accident is uncontroverted. The police report and the affidavit from Elliot
confirm that the impact was precipitated by a spontaneous chain reaction of events and that the
event was unforeseen since itcaused the cross-over of the Lerner vehicle into the Elliot vehicle.
25. Essentially, the McLaughlin vehicle, by failing to stop at a stop sign, caused the
Lerner vehicle to cross over into Elliot's lane of travel, in the opposite direction. The Lerners will
be unable to present evidence to support a finding to the contrary. Clearly, the cross-over of the
Lerner vehicle in opposing traffic was the proximate cause of the accident.
26. Courts have summarily absolved defendants of liability within the context of an
emergency situation, where, for example, a defendant attempted to avoid two vehicles which were
spinning out of control, (See Wenz, supra.), where a bus operator was forced to brake suddenly to
avoid colliding with a vehicle that suddenly drove in front of the bus, (See Roviello v Schoolman
Transp. Sys., Inc., 10 A.D.3d 356, 780 N.Y.S.2d 295 (2d Dept. 2004)), or where another vehicle
suddenly crosses over into the defendant's lane. See Koenig v. Lee, 53 A.D.3d 567, 862 N.Y.S.2d
373 (2d Dept. 2008); See Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 (2d Dept.
2003).
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27. In the instant matter, itis undisputed that Elliot was traveling in the southbound on
North Broadway in the right lane when the McLaughlin vehicle entered onto northbound North
Broadway from the intersection of Boston Road without stopping at the stop sign causing the
Lerner vehicle to cross over from the right lane on northbound North Broadway over the double
yellow lines into Elliot's lane of traffic and striking the front end of his vehicle.
28. Itis also undisputed that the timeframe between the cross-over of the Lerner vehicle
over the double yellow lines and the subsequent impact with the Elliot vehicle was within 1-2
seconds. Thus, Elliot did not have the opportunity to deliberate on the situation and was faced with
an emergency situation and he had no time to react. Clearly, Elliot was not the proximate cause of
the accident. Therefore, the actions of Elliot must be judged accordingly. Thus, itis submitted that
the emergency doctrine applies to instant case and any act or failure to act on the part of Elliot
cannot be construed as negligent. See Lee v. Ratz, 19 A.D.3d 552, 798 N.Y.S.2d 80 (2d Dept.
2005).
29. In Lee, the defendant Lee lost control of his vehicle after it was struck in the rear
by an unidentified vehicle and that his vehicle then crossed over a median strip into the path of
oncoming traffic where it collided with the defendant Walsh's vehicle. Id. Since the collision
occurred within seconds of when Walsh first saw the vehicle driven by Lee crossing over the
median at a high rate of speed, the emergency doctrine applies, and any alleged failure by Walsh
to exercise his best judgment was insufficient to constitute negligence. Id; See also Fermin v.
Graziosi, 240 A.D.2d 365, 658 N.Y.S.2d 404 (2d Dept. 1997). Thus, the Appellate Division
granted Walsh summary judgment as plaintiffs in opposition failed to raise a triable issue of fact
as to whether Walsh's reaction to the emergency was unreasonable, or whether any negligence on
his part before the cross-over contributed to bringing about the emergency. Id; See also Stoebe v.
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Norton, 278 A.D.2d 484, 718 N.Y.S.2d 642 (2d Dept. 2000); See also Turner v. Mongitore, 274
A.D.2d 512, 711 N.Y.S.2d 478 (2d Dept. 2000).
30. Similarly in Koenig, supra, plaintiff's vehicle, which had been traveling
southbound, was virtually stopped in the left turn lane of the roadway. Id at 568. The defendant
drove in the left lane of northbound traffic was forced to swerve across the center line colliding
with plaintiff's vehicle and forcing it backward and into the left travel lane of the southbound
traffic. Id at 568. The Cohen vehicle, traveling in that lane, then collided with the rear of the
plaintiff's vehicle. Plaintiff testified that the second collision occurred 1-2 seconds after the first.
Id at 568. Cohen testified that he had no awareness that an accident was taking place until the
momeñt his vehicle collided with plaintiff's vehicle. Id at 568. The Appellate Division held that
Cohen established his prima facie entitlement to judgment as a matter of law as he was faced with
an instâñtãñeous cross-over emergency, not of his own making, leaving him with only a second or
two to react and virtually no opportunity to avoid a collision. Id at 568; See also Boos v Bedrock
Materials, Inc., 16 A.D.3d 447, 791 N.Y.S.2d 621 (2d Dept. 2005); See also Gonzalez v. City of
New York, 295 A.D.2d 122, 742 N.Y.S.2d 301 (2d Dept. 2002). Mere speculation that Cohen may
have failed to take some unspecified accident-avoidance measures or in some other way
appellants'
contributed to the occurreñce of the accident is insufficient to defeat the motion for
summary judgment. Id at 568; See also Sirico v. Beukelaer, 14 A.D.3d 549, 787 N.Y.S.2d 662 (2d
Dept. 2005).
31. The facts in Lee and Koenig are similar to the case at bar in that both accidents
spontaneously occurred as the result of an unforeseen cross over of the traffic median separating
traffic and that both defendant drivers were faced with an emergency situation with no time to
react. Moreover, the plaintiffs in both Lee and Koenig failed to raise an issue of fact regarding the
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unreas0ñableness of the defendant's actions faced with such an emergency situation.
POINT H
The Uncontroverted Crossing of a Double Yellow Line
Constitutes Negligence as a Matter of Law
32. Elliot and Strickly were not the proximate cause of the occurrence and were faced
with an emergency situation when the Lerner vehicle crossed over the double line of opposing
traffic into the path of their vehicle. Therefore, Elliot and Strickly bear no responsibility for the
ensuing collision, as a driver is not required to anticipate that a vehicle traveling in the opposite
direction will cross-over into oncoming traffic. See Marsicano v Dealer Stor. Corp., 8 A.D.3d 451,
779 N.Y.S.2d 102 (2d Dept. 2004); See Eichenwald v. Chaudhry, 17 A.D.3d 403, 794 N.Y.S.2d
391 (2d Dept. 2005); See Dormena v. Wallace, 282 A.D.2d 425, 723 N.Y.S.2d. 72 (2d Dept. 2001).
33. A cross-over situation presents an emergency situation, and the actions of the driver
presented with such a situation must be judged in that context. See Dormena supra, at 427 ;See
Sullivan v. Mandato, 58 A.D.3d 714, 873 N.Y.S.2d 96 (2d Dept. 2009).
34. In Sullivan, supra, plaintiff was a passenger in a vehicle operated by the defendant
that was traveling southbound when he who lost control of his vehicle at a point where the roadway
co-defendants'
curved and crossed over the double yellow line, striking the tow truck, which was
in itsproper lane of travel. Id. The co-defendant asserted that he was traveling northbound uphill
when he firstobserved the defendant's vehicle coming downhill at him 25-30 feet away with the
impact occurring approximately one second later, entirely within the northbound lane. Id. The
Appellate Division held that the co-defendants established their entitlement to judgrñent as a matter
of law by submitting evidence demonstrating, prima facie, that the defendant crossed over a double
yellow line into an opposing lane of traffic, thereby causing the collision. Id at 715.
35. In the instant case, just as in Sullivan, Elliot has demonstrated his entitlement to
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.
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judgment as a matter of law by submitting the certified police report and fully executed and
notarized affidavit confirming that the collision admittedly occurred within seconds of the Lerner
vehicle to cross over into the oppdsing lanes of travel impacting his vehicle and that the emergency
doctrine applies, and any alleged failure on the part of Elliot to exercise his best judgment in
response to the emergency situation should not be considered. See Sullivan, supra; See Cortes v.
Edoo, 249 A.D.2d 501, 671 N.Y.S.2d 360 (2d Dept. 1998).
36. In addition, itis well settled that, under the emergency doctrine, "a driver is not
required to anticipate that an automobile traveling in the opposite direction will cross over into
oncoming traffic". See Huggins v. Figueroa, 305 A.D.2d 460, 461,762 N.Y.S.2d 404 (2d Dept.,
2003), citing Bentley v. Moore, 251 A.D.2d 612, 613, 675 N.Y.S.2d 108 (2d Dept.1998).
37. There is a plethora of appellate authority for the proposition that summary judgment
lies in cases where the defendant reacts to avoid a car which suddenly crosses over into opposing
traffic. See Lyons v. Rumpler, 254 A.D.2d 261, 678 N.Y.S..2d 142 (2d Dept. 1998); See Huggins,
supra; See Eichenwald, supra; See Pawlukiewicz, supra See Coss v Sunnydale Farms, 268 A.D.2d
499, 702 N.Y.S.2d 349 (2d Dept. 2000). In the case at bar, it is uncontroverted that the Lerner
vehicle crossed over into Elliot's lane of travel causing impact.
POINT III
Summary Judanent Is Plainly Warranted
38. On a motion for summary judgment, the proponent carries the initial burden of
producing evidence to demonstrate, as a matter of law, the absence of material issue of fact. See
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The affirmation of an
attorney, even without personal knowledge of the acts, may serve as the vehicle the submission of
form,"
acceptable attachmcñts which do provide "evidentiary proof in admissible such as
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documents and transcripts. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595
(1980).
39. Clearly, as set forth with particularly above and in documentary exhibits provided,
there is no evidence of any liability on the part of Elliot and Strickly. Thus, Elliot and Strickly
plaintiffs'
have sustained their burden on this motion, warranting a dismissal of Complaint.
40. In the face of such overwhelming evidence adduced by the moving defendants,
plaintiffs must come forward with admissible evidence, not conjecture and surmise, to raise a
plaintiffs'
triable issue of fact as to the liability of the defendants for injuries. See Zuckerman,
supra. Plaintiffs cannot sustain the burden in opposing summary judgment.
CONCLUSION
41. In the instant case, Elliot and Strickly have a non-negligent explanation for the
accident. It is patently clear that when one is faced with an emergency situation not of his own
making, he is entitled to an emergency charge as long as he acted reasonably under the
circumstances. Elliot was faced with an emergeñcy situation when the Lerner vehicle was pushed
into his lane of travel.
42. Clearly, Elliot had no opportunity to deliberate on the situation or to react. The
emergency doctrine applies in this instance. Moreover, neither the Lerners nor
McLaughling/Oyster Bay will be able to put forth any credible evidence to create a triable question
of fact against Elliot and Strickly.
43. There is no evidence to support a finding that Elliot struck the Lerner vehicle was
as the result of Elliot's negligence. As such, Elliot and Strickly were not the proximate cause of
the accident and are not liable. Summary judgment in favor of Elliot and Strickly, is appropriate
as a matter of law.
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44. For all the foregoiñg reasons, it is respectfully submitted that the motion for
summary judgmeñt on behalf of Elliot and Strickly be granted in its entirety.
45. No prior application for the requested relief has been previously submitted.
WHEREFORE, it is respectfully submitted that the instant motion be granted in its
entirety, together with such other and further relief as this court deems just and proper.
Dated: New York, New York
August 7, 2020
JEFF R. THOMAS
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
MARIA LERNER and KEITH LERNER, Index No. 607333/2020
Plaintiff(s),
- against -
SEAN A. MCLAUGHLIN, TOWN OF OYSTER BAY,
LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC.
Defendant(s).
NOTICE OF MOTION AND AFFIRMATION IN SUPPORT
GALLO VITUCCI KLAR LLP
Attorneys for Defendants
LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC.
90 Broad Street, 12th Floor
New York, New York 10004
Tel: (212) 683-7100
Fax: (212) 683-5555
File No.: PIC-2020-001
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Preview
FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ____--------_________________________________------- __--. -----------X MARIA LERNER and KEITH LERNER, IndeX No. 607333/2020 Plaintiff(s), - against - AFFIRMATION IN SUPPORT SEAN A. MCLAUGHLIN, TOWN OF OYSTER BAY, LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC. Defendant(s). ------__________--------------------------- - ---------------X JEFF R. THOMAS, an attorney duly admitted to practice law before the Courts of the State of New York and aware of the penalties of perjury, hereby affirms the following, upon information and belief: 1. I am a member of the law firm of GALLO VITUCCI KLAR LLP, attorneys for the defendants LINCOLN D. ELLIOTT (hereinafter "Elliot") and STRICKLY SUFFOLK, INC. (hereinafter "Strickly") and as such, I am fully familiar with all the facts and circumstances pertaining to the within litigation, the source of my knowledge being a file maintained by this law firm in the defense of this action and my personal handling of this litigation. 2. This affirmation is submitted in support of the within motion for an Order pursuant to CPLR §3212 granting Elliot and Strictly summary judgment dismissing the complaint and all cross-claims on the grounds that plaintiffs MARIA LERNER and KEITH LERNER (hereinafter "Lerner") have failed to establish liability on the part Elliot and Strictly for this accident, and granting such other and further relief as this Court deems just and proper. SUMMARY OF ARGUMENT 3. It is posited that Elliot was faced with an emergency situation not of his own making, in that, the Lerner vehicle traveling northbound on North Broadway Road crossed over 1 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 the double yellow lines into the opposing southbound lanes of travel within seconds after swerving co-defendants' to avoid impact with the vehicle as it entered onto northbound North Broadway from the intersection of Boston Road without stopping at the stop sign, causing the Lerner vehicle to collide with the Elliot vehicle which was traveling entirely within the right lane of southbound North Broadway. 4. The cross-over of the Lerner vehicle over the double yellow lines into the opposing lanes of traffic was the proximate cause of the occurrence and Elliot and Strickly bear no liability for the accident. 5. Clearly, the evidence submitted in support of Elliot and Strickly's motion for summary judgment supports a finding that Elliot was faced with an emergency situation, not of his own making, and one which was unforeseen. The cross-over of the Lerner vehicle and subsequent impact which ensued is uncontroverted. It is also undisputed that the impact between the Lerner vehicle and Elliot vehicle occurred within 1-2 seconds of the cross-over of the Lerner vehicle into opposing traffic. 6. Based on the foregoing, the emergency doctrine applies in this case and Elliot and Strickly acted reasonably under such circumstances. Summary Judgment must be granted as Elliot and Strickly were not the proximate cause of the accident, were not negligent, and have no liability for the happening of the occurrence. RELEVANT PROCEDURAL HISTORY Lerners' 7. This is an action to recover for personal injuries allegedly sustained by the in a multi-vehicle accident that allegedly occurred on Thursday, November 15, 2018 at 3:55 p.m. on North Broadway near the intersection of Boston Avenue in the Hamlet of North Massapequa 2 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 "A" and in the Town of Oyster Bay, New York. Annexed hereto as Exhibit is certified copy of the Police Report. 8. The Lerner's commenced the action by filing a Summons and Complaint in "B" Supreme Court, Suffolk County on September 30, 2019. Annexed hereto as Exhibit is a copy of the Summons and Complaint. 9. The co-defendants SEAN A. MCLAUGHLIN (hereinafter "McLaughlin") and TOWN OF OYSTER BAY (hereinafter "Oyster Bay") joined issue on or about November 19, "C" co-defendants' 2019. Annexed hereto as Exhibit is a copy of Answer. 10. Elliot and Strickly joined issue on or about February 3, 2020. Annexed hereto as "D" Exhibit is a copy of Elliot and Strickly's Answer. 11. The Supreme Court, Suffolk County issued an Order granting McLaughlin and Oyster Bay's motion to change venue to Supreme Court, Nassau County. Amexed hereto as "E" Exhibit is a copy of the Order and Court Notice confirming transfer to Supreme Court, Nassâü County. 12. No depositions have been held and the Note of Issue has not been filed. STATEMENT OF RELEVANT FACTS 13. As stated supra, this action arises out of a multi-vehicle accident that allegedly occurred on North Broadway near the intersection of Boston Avenue in the Hamlet of North Massapequa and in the Town of Oyster Bay, New York. (See Exhibit "A"). 14. North Broadway is a two-way street separated by a double yellow line with two "F" lanes traveling in each direction separated by dotted white lines. Annexed hereto as Exhibit is an Affidavit from Elliot. 3 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 15. At the time of the accident, Mrs. Lerner was driving a 2013 Chevrolet bearing New York State license plate number AWU3825 in which Mr. Lerner was a front seat passenger while McLaughlin was driving a 2015 International dump truck bearing New York State license plate number AM8735 which was owned by Oyster Bay. (See Exhibit "A"). 16. At the time of the accident, Elliot was driving a 2009 Lincoln bearing New York State license plate number 14861TY which was owned by Strictly that was in good condition and did not have any mechanical problems. (See Exhibit "F"). 17. Prior to the accident, Elliot was traveling in the right lane on southbound North Broadway for about ten minutes at approximately 15 mph because of snowy conditions while Mrs. Lerner was traveling northbound on North Broadway in the right lane. (See Exhibit "A"). 18. While Elliot was traveling in the right lane on southbound North Broadway, the dump truck driven by McLaughlin with an attached snowplow blade entered onto northbound North Broadway from the intersection of Boston Road without stopping at the stop sign causing the Lerner vehicle to swerve to the left from the right lane of northbound North Broadway and within 1-2 seconds, cross-over the double yellow lines into the right lane of southbound North Broadway colliding with the front end of the vehicle being driven by Elliot. (See Exhibit "F"). ARGUMENT POINT I Defcadants Lincoln D. Elliott And Strickly Suffolk. Inc. Were Faced With an Emergeng Situation Not of Their Own Makine 19. It is axiomatic that when one is faced with an emergency situation not of his own making, the operator of a vehicle is entitled to an emergency charge as long as he acted reasoñãbly under the circumstances. See Wenz v. Shafer, 293 A.D.2d 742, 742 N.Y.S.2d 318 (2d Dept. 2002). 20. In Wenz, plaintiff was driving south during a rainstorm and attempted to move into 4 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 the center lane to avoid tree branches that had fallen on the roadway and in doing so, lost control of his vehicle. Id. The defendant was also traveling south and as he passed through the tree plaintiffs' branches, he came upon vehicle and another vehicle spinning out of control. Id. The defendant attempted to avoid the two spinning vehicles but collided head-on with plaintiff's vehicle. Id at 743. According to plaintiff, his vehicle had come to a stop as it came out of the spin and was struck by the defendant. Id at 743. However, the defendant claimed that his vehicle had nearly come to a stop on the shoulder of the road when it was struck by plaintiff's vehicle. Id at 743. The Appellate Division held the trial court properly granted summary judgment to the defendant based on the emergency doctrine as he was faced with an emergency situation not of his own making, when he was confronted with the spinning vehicles, and he acted reasonably under the circumstances. Id at 743. 21. The emergency doctrine recognizes that when a party is faced with a sudden and unexpected circumstance not of his or her own making, which leaves little or no time for thought, deliberation, or consideration, or causes the party to be reasonably so disturbed that the party must make a speedy decision without weighing alternative courses of conduct, the party may not be held negligent, if the actions taken are reasonable and prudent in the emergency context, even if itlater appears that the party made a wrong decision, provided the party has not created the emergency See Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334 (2001); See Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 646 N.Y.S.2d 788 (1996); See Pawlukiewicz v. Boisson, 275 A.D.2d 446, 712 N.Y.S.2d 634 (2d Dept. 2001). 22. Moreover, the emergency doctrine provides that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full 5 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances. See Bello v. Transit Auth., 12 A.D.3d 58, 783 N.Y.S.2d 648 (2d Dept. 2004). 23. Although the existence of an emergency and the reasonableness of a party's response to itmay present questions of fact, they may, in appropriate circumstances, be determined as a matter of law. 24. In the instant matter, the evidence supports the fact that the accident involved a "cross-over" situation." which caused an "emergency The evidence as to the sequence of events culminating in the accident is uncontroverted. The police report and the affidavit from Elliot confirm that the impact was precipitated by a spontaneous chain reaction of events and that the event was unforeseen since itcaused the cross-over of the Lerner vehicle into the Elliot vehicle. 25. Essentially, the McLaughlin vehicle, by failing to stop at a stop sign, caused the Lerner vehicle to cross over into Elliot's lane of travel, in the opposite direction. The Lerners will be unable to present evidence to support a finding to the contrary. Clearly, the cross-over of the Lerner vehicle in opposing traffic was the proximate cause of the accident. 26. Courts have summarily absolved defendants of liability within the context of an emergency situation, where, for example, a defendant attempted to avoid two vehicles which were spinning out of control, (See Wenz, supra.), where a bus operator was forced to brake suddenly to avoid colliding with a vehicle that suddenly drove in front of the bus, (See Roviello v Schoolman Transp. Sys., Inc., 10 A.D.3d 356, 780 N.Y.S.2d 295 (2d Dept. 2004)), or where another vehicle suddenly crosses over into the defendant's lane. See Koenig v. Lee, 53 A.D.3d 567, 862 N.Y.S.2d 373 (2d Dept. 2008); See Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 (2d Dept. 2003). 6 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 27. In the instant matter, itis undisputed that Elliot was traveling in the southbound on North Broadway in the right lane when the McLaughlin vehicle entered onto northbound North Broadway from the intersection of Boston Road without stopping at the stop sign causing the Lerner vehicle to cross over from the right lane on northbound North Broadway over the double yellow lines into Elliot's lane of traffic and striking the front end of his vehicle. 28. Itis also undisputed that the timeframe between the cross-over of the Lerner vehicle over the double yellow lines and the subsequent impact with the Elliot vehicle was within 1-2 seconds. Thus, Elliot did not have the opportunity to deliberate on the situation and was faced with an emergency situation and he had no time to react. Clearly, Elliot was not the proximate cause of the accident. Therefore, the actions of Elliot must be judged accordingly. Thus, itis submitted that the emergency doctrine applies to instant case and any act or failure to act on the part of Elliot cannot be construed as negligent. See Lee v. Ratz, 19 A.D.3d 552, 798 N.Y.S.2d 80 (2d Dept. 2005). 29. In Lee, the defendant Lee lost control of his vehicle after it was struck in the rear by an unidentified vehicle and that his vehicle then crossed over a median strip into the path of oncoming traffic where it collided with the defendant Walsh's vehicle. Id. Since the collision occurred within seconds of when Walsh first saw the vehicle driven by Lee crossing over the median at a high rate of speed, the emergency doctrine applies, and any alleged failure by Walsh to exercise his best judgment was insufficient to constitute negligence. Id; See also Fermin v. Graziosi, 240 A.D.2d 365, 658 N.Y.S.2d 404 (2d Dept. 1997). Thus, the Appellate Division granted Walsh summary judgment as plaintiffs in opposition failed to raise a triable issue of fact as to whether Walsh's reaction to the emergency was unreasonable, or whether any negligence on his part before the cross-over contributed to bringing about the emergency. Id; See also Stoebe v. 7 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 Norton, 278 A.D.2d 484, 718 N.Y.S.2d 642 (2d Dept. 2000); See also Turner v. Mongitore, 274 A.D.2d 512, 711 N.Y.S.2d 478 (2d Dept. 2000). 30. Similarly in Koenig, supra, plaintiff's vehicle, which had been traveling southbound, was virtually stopped in the left turn lane of the roadway. Id at 568. The defendant drove in the left lane of northbound traffic was forced to swerve across the center line colliding with plaintiff's vehicle and forcing it backward and into the left travel lane of the southbound traffic. Id at 568. The Cohen vehicle, traveling in that lane, then collided with the rear of the plaintiff's vehicle. Plaintiff testified that the second collision occurred 1-2 seconds after the first. Id at 568. Cohen testified that he had no awareness that an accident was taking place until the momeñt his vehicle collided with plaintiff's vehicle. Id at 568. The Appellate Division held that Cohen established his prima facie entitlement to judgment as a matter of law as he was faced with an instâñtãñeous cross-over emergency, not of his own making, leaving him with only a second or two to react and virtually no opportunity to avoid a collision. Id at 568; See also Boos v Bedrock Materials, Inc., 16 A.D.3d 447, 791 N.Y.S.2d 621 (2d Dept. 2005); See also Gonzalez v. City of New York, 295 A.D.2d 122, 742 N.Y.S.2d 301 (2d Dept. 2002). Mere speculation that Cohen may have failed to take some unspecified accident-avoidance measures or in some other way appellants' contributed to the occurreñce of the accident is insufficient to defeat the motion for summary judgment. Id at 568; See also Sirico v. Beukelaer, 14 A.D.3d 549, 787 N.Y.S.2d 662 (2d Dept. 2005). 31. The facts in Lee and Koenig are similar to the case at bar in that both accidents spontaneously occurred as the result of an unforeseen cross over of the traffic median separating traffic and that both defendant drivers were faced with an emergency situation with no time to react. Moreover, the plaintiffs in both Lee and Koenig failed to raise an issue of fact regarding the 8 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 unreas0ñableness of the defendant's actions faced with such an emergency situation. POINT H The Uncontroverted Crossing of a Double Yellow Line Constitutes Negligence as a Matter of Law 32. Elliot and Strickly were not the proximate cause of the occurrence and were faced with an emergency situation when the Lerner vehicle crossed over the double line of opposing traffic into the path of their vehicle. Therefore, Elliot and Strickly bear no responsibility for the ensuing collision, as a driver is not required to anticipate that a vehicle traveling in the opposite direction will cross-over into oncoming traffic. See Marsicano v Dealer Stor. Corp., 8 A.D.3d 451, 779 N.Y.S.2d 102 (2d Dept. 2004); See Eichenwald v. Chaudhry, 17 A.D.3d 403, 794 N.Y.S.2d 391 (2d Dept. 2005); See Dormena v. Wallace, 282 A.D.2d 425, 723 N.Y.S.2d. 72 (2d Dept. 2001). 33. A cross-over situation presents an emergency situation, and the actions of the driver presented with such a situation must be judged in that context. See Dormena supra, at 427 ;See Sullivan v. Mandato, 58 A.D.3d 714, 873 N.Y.S.2d 96 (2d Dept. 2009). 34. In Sullivan, supra, plaintiff was a passenger in a vehicle operated by the defendant that was traveling southbound when he who lost control of his vehicle at a point where the roadway co-defendants' curved and crossed over the double yellow line, striking the tow truck, which was in itsproper lane of travel. Id. The co-defendant asserted that he was traveling northbound uphill when he firstobserved the defendant's vehicle coming downhill at him 25-30 feet away with the impact occurring approximately one second later, entirely within the northbound lane. Id. The Appellate Division held that the co-defendants established their entitlement to judgrñent as a matter of law by submitting evidence demonstrating, prima facie, that the defendant crossed over a double yellow line into an opposing lane of traffic, thereby causing the collision. Id at 715. 35. In the instant case, just as in Sullivan, Elliot has demonstrated his entitlement to 9 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 . NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 judgment as a matter of law by submitting the certified police report and fully executed and notarized affidavit confirming that the collision admittedly occurred within seconds of the Lerner vehicle to cross over into the oppdsing lanes of travel impacting his vehicle and that the emergency doctrine applies, and any alleged failure on the part of Elliot to exercise his best judgment in response to the emergency situation should not be considered. See Sullivan, supra; See Cortes v. Edoo, 249 A.D.2d 501, 671 N.Y.S.2d 360 (2d Dept. 1998). 36. In addition, itis well settled that, under the emergency doctrine, "a driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic". See Huggins v. Figueroa, 305 A.D.2d 460, 461,762 N.Y.S.2d 404 (2d Dept., 2003), citing Bentley v. Moore, 251 A.D.2d 612, 613, 675 N.Y.S.2d 108 (2d Dept.1998). 37. There is a plethora of appellate authority for the proposition that summary judgment lies in cases where the defendant reacts to avoid a car which suddenly crosses over into opposing traffic. See Lyons v. Rumpler, 254 A.D.2d 261, 678 N.Y.S..2d 142 (2d Dept. 1998); See Huggins, supra; See Eichenwald, supra; See Pawlukiewicz, supra See Coss v Sunnydale Farms, 268 A.D.2d 499, 702 N.Y.S.2d 349 (2d Dept. 2000). In the case at bar, it is uncontroverted that the Lerner vehicle crossed over into Elliot's lane of travel causing impact. POINT III Summary Judanent Is Plainly Warranted 38. On a motion for summary judgment, the proponent carries the initial burden of producing evidence to demonstrate, as a matter of law, the absence of material issue of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The affirmation of an attorney, even without personal knowledge of the acts, may serve as the vehicle the submission of form," acceptable attachmcñts which do provide "evidentiary proof in admissible such as 10 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 documents and transcripts. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). 39. Clearly, as set forth with particularly above and in documentary exhibits provided, there is no evidence of any liability on the part of Elliot and Strickly. Thus, Elliot and Strickly plaintiffs' have sustained their burden on this motion, warranting a dismissal of Complaint. 40. In the face of such overwhelming evidence adduced by the moving defendants, plaintiffs must come forward with admissible evidence, not conjecture and surmise, to raise a plaintiffs' triable issue of fact as to the liability of the defendants for injuries. See Zuckerman, supra. Plaintiffs cannot sustain the burden in opposing summary judgment. CONCLUSION 41. In the instant case, Elliot and Strickly have a non-negligent explanation for the accident. It is patently clear that when one is faced with an emergency situation not of his own making, he is entitled to an emergency charge as long as he acted reasonably under the circumstances. Elliot was faced with an emergeñcy situation when the Lerner vehicle was pushed into his lane of travel. 42. Clearly, Elliot had no opportunity to deliberate on the situation or to react. The emergency doctrine applies in this instance. Moreover, neither the Lerners nor McLaughling/Oyster Bay will be able to put forth any credible evidence to create a triable question of fact against Elliot and Strickly. 43. There is no evidence to support a finding that Elliot struck the Lerner vehicle was as the result of Elliot's negligence. As such, Elliot and Strickly were not the proximate cause of the accident and are not liable. Summary judgment in favor of Elliot and Strickly, is appropriate as a matter of law. 11 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 44. For all the foregoiñg reasons, it is respectfully submitted that the motion for summary judgmeñt on behalf of Elliot and Strickly be granted in its entirety. 45. No prior application for the requested relief has been previously submitted. WHEREFORE, it is respectfully submitted that the instant motion be granted in its entirety, together with such other and further relief as this court deems just and proper. Dated: New York, New York August 7, 2020 JEFF R. THOMAS 12 of 13 FILED: NASSAU COUNTY CLERK 08/07/2020 03:40 PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU MARIA LERNER and KEITH LERNER, Index No. 607333/2020 Plaintiff(s), - against - SEAN A. MCLAUGHLIN, TOWN OF OYSTER BAY, LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC. Defendant(s). NOTICE OF MOTION AND AFFIRMATION IN SUPPORT GALLO VITUCCI KLAR LLP Attorneys for Defendants LINCOLN D. ELLIOTT and STRICKLY SUFFOLK, INC. 90 Broad Street, 12th Floor New York, New York 10004 Tel: (212) 683-7100 Fax: (212) 683-5555 File No.: PIC-2020-001 13 of 13