In Koenig v. Lee, Decided on July 15, 2008, The 2d. Department dismissed plaintiff’s complaint for personal injuries suffered in an Automobile Accident based on the Emergency Doctrine. The facts set forth by The Court were as follows;
“Here, the evidence submitted by the appellants in support of their motion for summary judgment established that the plaintiff’s vehicle, which had been traveling southbound, was virtually stopped in the left turn lane of the roadway. According to his deposition testimony, as the defendant Song B. Lee drove in the left lane of northbound traffic, he was forced to swerve across the center line. In so doing, his car collided with the plaintiff’s, forcing the plaintiff’s vehicle to move backward and into the left travel lane of the southbound traffic. The appellants’ vehicle, traveling in that lane, then collided with the rear of the plaintiff’s vehicle. According to the plaintiff’s deposition testimony, the second collision occurred one or two seconds after the first. According to the deposition testimony of the appellant Joel H. Cohen, he had no awareness that an accident was taking place until the moment his vehicle collided with the plaintiff’s.”
In dismissing plaintiff’s complaint The Court Held;
“Thus, the evidence submitted by the appellants in support of their motion for summary judgment established that Joel H. Cohen was faced with an instantaneous 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 (see Lee v Ratz, 19 AD3d 552, 554; Boos v Bedrock Materials, Inc., 16 AD3d 447, 447; Gonzalez v City of New York, 295 AD2d 122, 122; Caban v Vega, 226 AD2d 109, 111; Koch v Levenson, 225 AD2d 592, 593; Williams v Econ, 221 AD2d 429, 430). Under these circumstances, the appellants established their prima facie entitlement to judgment as a matter of law. Mere speculation that Joel H. Cohen may have failed to take some unspecified accident-avoidance measures or in some other way contributed to the occurrence of the accident is insufficient to defeat the appellants’ motion for summary judgment (see Boos v Bedrock Materials, Inc., 16 AD3d at 447; Sirico v Beukelaer, 14 AD3d 549, 549; Mehring v Cahill, 271 AD2d 415, 415-416; Lyons v Rumpler, 254 AD2d 261, 262-263; Caban v Vega, 226 AD2d at 111; Williams v Econ, 221 AD2d at 430). In opposition, the plaintiff failed to raise a triable issue of fact as to whether Joel H. Cohen’s reaction to the emergency was unreasonable, or whether any negligence on his part prior to the cross-over contributed to the bringing about of the emergency (see Lee v Ratz, 19 AD3d at 554).”
The lesson to be learned is that in a New York Automobile Accident in which the Emergency Doctrine may be implicated GET AN EXPERT. A qualified accident reconstruction expert is able, using long accepted methodology, to analyze a driver’s perception of a situation as a hazard, to analyze the driver’s decision as to how to avoid the hazard and to analyze the driver’s performance as to the actions undertaken to avoid the hazard. The qualified expert will be able to give opinions on the driver’s reaction time from perception of the hazard and whether the driver reacted in a timely manner in order to avoid the hazard.