Stewart v. Ellison, 28 A.D.3d 252 (N.Y. App. Div. 2006). · Go Syfert
Stewart v. Ellison, 28 A.D.3d 252 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: Cox v. Seniorcare Emergency Med. Servs., Inc. (nyappdiv, 2024-10-03)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Cox v. Seniorcare Emergency Med. Servs., Inc. (2×)
N.Y. App. Div. · 2024 · confidence medium
Defendants did not establish their entitlement to summary judgment, as the record presents triable issues of fact as to whether they may rely on the emergency doctrine ( see Stewart v Ellison , 28 AD3d 252, 254 [1st Dept 2006]).
discussed Cited as authority (rule) Kwipu v. Sontag
N.Y. App. Div. · 2022 · confidence medium
As to the emergency doctrine, defendants submitted no evidence that the events that gave rise to the accident were not of the decedent's own making ( see Stewart v Ellison, 28 AD3d 252, 254 [1st Dept 2006]).
cited Cited as authority (rule) Mack v. Seabrook
N.Y. App. Div. · 2018 · confidence medium
Stewart v Ellison , 28 AD3d 252, 253-254 [1st Dept 2006]).
discussed Cited as authority (rule) Zbock v. Gietz
N.Y. App. Div. · 2016 · confidence medium
We further conclude that Gietz failed to establish that he is entitled to the benefit of the emergency doctrine as a matter of law, inasmuch as his own submissions raise issues of fact whether he contributed to the emergency by failing to notice the disabled van in his lane or react to the actions of the tractor-trailer beside him (see Stewart v Ellison, 28 AD3d 252, 254 [2006]).
discussed Cited as authority (rule) Zbock v. Gietz
N.Y. App. Div. · 2016 · confidence medium
We further conclude that Gietz failed to establish that he is entitled to the benefit of the emergency doctrine as a matter of law, inasmuch as his own submissions raise issues of fact whether he contributed to the emergency by failing to notice the disabled van in his lane or react to the actions of the tractor-trailer beside him (see Stewart v Ellison, 28 AD3d 252, 254 [2006]).
discussed Cited as authority (rule) Jeffrey v. DeJesus
N.Y. App. Div. · 2014 · confidence medium
Plaintiffs’ contention that DeJesus made an inconsistent statement following the accident, as recorded in the police accident report, is not conclusive but raises an issue of credibility to be resolved by the factfinder (see Stewart v Ellison, 28 AD3d 252, 254 [1st Dept 2006]).
discussed Cited as authority (rule) Jeffrey v. DeJesus
N.Y. App. Div. · 2014 · confidence medium
Plaintiffs’ contention that DeJesus made an inconsistent statement following the accident, as recorded in the police accident report, is not conclusive but raises an issue of credibility to be resolved by the factfinder (see Stewart v Ellison, 28 AD3d 252, 254 [1st Dept 2006]).
discussed Cited "see" Watson v. Peschel
N.Y. App. Div. · 2020 · signal: see · confidence high
As noted by the majority, "[t]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making" ( Gage v Raffensperger , 234 AD2d 751, 752 [3d Dept 1996]; see Stewart v Ellison , 28 AD3d 252, 254 [1st Dept 2006]; McGraw v Glowacki , 303 AD2d 968, 969 [4th Dept 2003]).
discussed Cited "see, e.g." Gilkerson v. Buck
N.Y. App. Div. · 2019 · signal: see also · confidence medium
We thus conclude that issues of fact exist whether defendant, in taking no evasive action and in making no effort to slow down, or move over, or otherwise attempt to avert the impending collision, responded reasonably under the circumstances ( see Dalton v Lucas , 96 AD3d 1648, 1649 [4th Dept 2012]; see also Andrews v County of Cayuga , 96 AD3d 1477 , 1479 [4th Dept 2012]) and whether her failure to observe that plaintiffs' motorcycle was slowing down in front of her minivan contributed to the emergency situation ( see Stewart v Ellison , 28 AD3d 252, 254 [1st Dept 2006]).
Retrieving the full opinion text from the archive…
Cheryl Stewart
v.
Veronica Ellison
Appellate Division of the Supreme Court of the State of New York.
Apr 11, 2006.
28 A.D.3d 252
Cited by 10 opinions  |  Published

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 9, 2005, granting the Ellison defendants’ motion[*253] and defendant Ford Credit Titling Trust Co.’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, the motion and cross motion denied, and the complaint reinstated as against all defendants.

On July 5, 2002, at approximately 1:30 p.m., plaintiff claims to have been operating her motorcycle in the right northbound lane on the FDR Drive. Defendant Glenn E. Ellison was operating a vehicle leased from codefendant Ford Credit Titling Trust Co. northbound in the center lane approximately 30 yards behind plaintiff. A saddlebag fastened to the motorcycle’s back seat by bungee cords apparently became caught in the motorcycle’s rear wheel, causing the motorcycle to skid. The Ellison vehicle collided with the motorcycle, striking plaintiffs left ankle and causing her to sustain a compound fracture. According to the police report, plaintiff told the responding officer that after her saddlebag became caught in the rear wheel, the wheel locked up, causing the motorcycle to skid “out of control.” A diagram of the location of the respective vehicles after the collision showed the motorcycle to be in the center lane.

At her deposition, plaintiff testified that she was traveling 40 miles per hour before the accident, and that after her saddlebag became enmeshed in the rear wheel, the motorcycle began to skid toward the left with only the forward half of the front wheel crossing over into the center lane at the time of impact. According to plaintiff, she skidded for approximately 15 to 20 seconds and no other portion of the motorcycle crossed over the line separating the right from the center lane. In fact, plaintiff claims, the motorcycle’s left foot peg remained in the right lane of travel and the motorcycle was still skidding when it was struck. Ellison testified that the motorcycle was 10 to 15 yards ahead of his vehicle when it began to skid and he noticed smoke emitting from its rear tire. He immediately braked his vehicle and slowed down. Ten seconds had elapsed from the beginning of the motorcycle’s skid to the time of impact. The motorcycle “sort of wiggled, waggled and came into the center lane.” Ellison traveled “[t]hree feet or less” after he applied his brakes. When Ellison observed the motorcycle skidding, he did not attempt to change lanes because “there was a big truck to my immediate left.”

The Ellison defendants moved for summary judgment, arguing that Ellison, faced with an emergency situation, acted reasonably under the circumstances. Defendant Ford cross-moved for summary judgment, adopting Ellison’s argument. Plaintiff opposed the motions, arguing that whether Ellison was faced[*254] with an emergency situation and acted reasonably presented a question of fact. Supreme Court found the facts “largely uncontroverted” and granted defendants’ motions, determining that plaintiffs skidding was the sole proximate cause of the accident. We reverse.

An emergency situation arises when one is confronted with a sudden and unexpected event or combination of events not of one’s own making that leaves little or no time for reflection or the exercise of deliberate judgment (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]). A party may not rely on the emergency doctrine if he or she caused or contributed to the emergency (see Mead v Marino, 205 AD2d 669 [1994]; Sweeney v McCormick, 159 AD2d 832 [1990]). On this record, contrary to Supreme Court’s determination, we find issues of fact as to whether Ellison’s negligence contributed to the occurrence of the accident. Although belied by alleged admissions made at the scene of the accident, as reflected in the police report, which are not conclusive and, in any event, can be challenged at trial, plaintiff testified at her deposition that only part of her front wheel crossed over onto the center lane and that she was able to control her skid. In fact, plaintiff testified that the motorcycle’s left foot peg, which was apparently the point of impact, remained in the right lane. Moreover, plaintiffs testimony that she had been skidding for about 15 to 20 seconds before the accident and had activated her rear brake light to alert drivers behind her of her problem raises a triable issue of fact as to whether Ellison was confronted with an emergency situation and, concomitantly, whether he had a reasonable opportunity to avoid the accident (see Raposo v Raposo, 250 AD2d 420 [1998]). Given the state of the record presented, the motions should have been denied. Concur—Andrias, J.P., Sullivan, Williams, Gonzalez and Catterson, JJ.