Dalchand v. Missigman

Appellate Division of the Supreme Court of New York

Dalchand v. Missigman

288 A.D.2d 956, 732 N.Y.S.2d 791, 2001 N.Y. App. Div. LEXIS 10732

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 2001

StatusPublished

Cited by4 cases

This text of 288 A.D.2d 956 (Dalchand v. Missigman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dalchand v. Missigman, 288 A.D.2d 956, 732 N.Y.S.2d 791, 2001 N.Y. App. Div. LEXIS 10732 (N.Y. Ct. App. 2001).

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of Constance Missigman (defendant) to amend her answer to add an affirmative defense based upon the medical emergency doctrine. A driver “who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen” (1A NY PJI 218 [3d ed 2001]; see also, Ficorilli v Thomsen, 262 AD2d 602, 603; State of New York v Susco, 245 AD2d 854, 855). According to her deposition testimony, defendant was stopped in traffic behind the stopped vehicle of plaintiff Chandra Dalchand and experienced a painful foot cramp that caused her foot to slip from the brake. Based on that deposition testimony, defendant is entitled to assert the affirmative defense of medical emergency (see, Reeg v Hodgson, 1 Ohio App 2d 272, 274, 202 NE2d 310, 313). (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of Constance Missigman (defendant) to amend her answer to add an affirmative defense based upon the medical emergency doctrine. A driver “who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen” (1A NY PJI 218 [3d ed 2001]; see also, Ficorilli v Thomsen, 262 AD2d 602, 603; State of New York v Susco, 245 AD2d 854, 855). According to her deposition testimony, defendant was stopped in traffic behind the stopped vehicle of plaintiff Chandra Dalchand and experienced a painful foot cramp that caused her foot to slip from the brake. Based on that deposition testimony, defendant is entitled to assert the affirmative defense of medical emergency (see, Reeg v Hodgson, 1 Ohio App 2d 272, 274, 202 NE2d 310, 313). (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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Bluebook (online)

288 A.D.2d 956, 732 N.Y.S.2d 791, 2001 N.Y. App. Div. LEXIS 10732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalchand-v-missigman-nyappdiv-2001.

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