Sacco v. Phillippsen

272 A.D.2d 889, 707 N.Y.S.2d 571, 2000 N.Y. App. Div. LEXIS 5310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Status: Published

Opinion

—Order unanimously reversed on the law with costs and motion denied. Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the automobile in which she was a passenger slid off the road and struck a utility pole. Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability against defendants Elizabeth J. Phillippsen (defendant), the driver of the automobile, and Patricia J. Phillippsen, its owner. Plaintiff failed to establish her entitlement to judgment as a matter of law with respect to the applicability of the emergency doctrine. A reasonable view of the evidence supports the conclusion that defendant “was confronted by a sudden and unforeseen occurrence not of [her] own making” when the car ahead of her began swerving and she encountered a patch of snow on an otherwise clear road (Rivera v New York City Tr. Auth., 77 NY2d 322, 327, rearg denied 77 NY2d 990). Whether the circumstances constituted an emergency and whether defendant’s conduct was reasonable in light of those circumstances are issues for the trier of fact (see, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923, 924; Barber v Young, 238 AD2d 822, 823-824, lv denied 90 NY2d 808; Davey v Ohler, 188 AD2d 726, 727). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Wisner and Scudder, JJ.