Drew F. Freder, et al., appellants,
Costello Industries, Inc., et al., defendants, Ocon Incorporated, et al., respondents. (Index No. 1010/12)
- February 23, 2018
& Longworth, LLP, Dobbs Ferry, NY (Marie R. Hodukavich of
counsel), for appellants.
Fleischner & Fino, LLP, New York, NY (Nancy Davis Lyness
of counsel), for respondents.
Litchfield Cavo LLP, New York, NY (Michael K. Dvorkin of
counsel), for defendant Costello Industries, Inc.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiffs appeal from an order of the Supreme Court, Putnam
County (Lewis J. Lubell, J.), dated August 28, 2015. The
order granted the motion of the defendants Ocon Incorporated
and John J. Murphy to amend their answer to include the
affirmative defenses of the emergency doctrine and the
seatbelt defense, and denied the plaintiffs' cross motion
for summary judgment on their General Municipal Law §
205-e cause of action insofar as asserted against the
defendants Ocon Incorporated and John J. Murphy.
that the order is affirmed, with costs to the respondents.
plaintiff Drew F. Freder, a New York State Police Trooper,
was injured in the line of duty while responding to a
vehicular accident on Interstate 84. A pickup truck owned by
the defendant Ocon Incorporated and driven by the defendant
John J. Murphy (hereinafter together Ocon/Murphy) allegedly
suddenly moved from the right lane of traffic into the left
lane where Freder was operating his police vehicle at a high
rate of speed. The Ocon/Murphy truck allegedly moved into the
left lane to avoid striking a construction sign that was
present in the right lane. The Ocon/Murphy truck had been
traveling behind a Honda vehicle operated by the defendant
Jean B. Simeus, who allegedly also swerved around the
construction sign to avoid striking it. As a result of the
sudden lane change, the Ocon/Murphy truck was struck by
Freder's police vehicle.
Supreme Court granted Ocon/Murphy's motion for leave to
amend their answer to plead affirmative defenses of the
emergency doctrine and the seatbelt defense. The court
further denied the plaintiffs' cross motion for summary
judgment on their General Municipal Law § 205-e cause of
action insofar as asserted against Ocon/Murphy. The
for leave to amend pleadings under CPLR 3025(b) should be
freely granted unless the proposed amendment (1) would
unfairly prejudice or surprise the opposing party, or (2) is
palpably insufficient or patently devoid of merit'"
(Favia v. Harley-Davidson Motor Co., Inc., 119
A.D.3d 836, 836, quoting Maldonado v. Newport Gardens,
Inc., 91 A.D.3d 731, 731-732; see Jeffrey Gardens
Apt. Corp. v. LH Mgt., Inc., 157 A.D.3d 941).
"'No evidentiary showing of merit is required under
CPLR 3025(b)'" (Jeffrey Gardens Apt. Corp. v. LH
Mgt., Inc., 157 A.D.3d at 942, quoting Lucido v
Mancuso, 49 A.D.3d 220, 229). "'A determination
whether to grant such leave is within the trial court's
broad discretion, and the exercise of that discretion will
not be lightly disturbed'" (Jeffrey Gardens Apt.
Corp. v. LH Mgt., Inc., 157 A.D.3d at 942, quoting
Ingrami v Rovner, 45 A.D.3d 806, 808).
to the plaintiffs' contention, the Supreme Court did not
improvidently exercise its discretion in permitting
Ocon/Murphy to amend its answer to allege the emergency
doctrine as an affirmative defense. Under the emergency
doctrine, "when an actor is faced with a sudden and
unexpected circumstance which leaves little or no time for
thought, deliberation or consideration, or causes the actor
to be reasonably so disturbed that the actor must make a
speedy decision without weighing alternative courses of
conduct, the actor may not be negligent if the actions taken
are reasonable and prudent in the emergency context"
(Rivera v New York City Tr. Auth., 77 N.Y.2d 322,
327; see Jablonski v Jakaitis, 85 A.D.3d 969, 970;
Evans v. Bosl, 75 A.D.3d 491, 492; Palma v
Garcia, 52 A.D.3d 795, 796; Gajjar v. Shah, 31
A.D.3d 377, 377-378). "Except in [the] most egregious
circumstances, it is normally left to the trier of fact to
determine if [a particular] situation rises to the level of
[an] emergency" (Stevenson v Recore, 221 A.D.2d
where the claimed emergency resulted from a defendant's
own actions, for example, from the defendant's failure to
maintain a safe distance between his or her vehicle and the
vehicle in front of him of her, it will not qualify as an
emergency under the emergency doctrine (see
Shehab v. Powers, 150 A.D.3d 918, 920; Burke v.
Kreger Truck Renting Co., 272 A.D.2d 494, 494-495;
Pappas v Opitz, 262 A.D.2d 471). Nor will the
emergency doctrine apply where he or she encounters "a
known, foreseeable hazard which he in fact observed enter his
path prior to the accident" or where he or she
"fails to be aware of the potential hazards presented by
traffic conditions, including stoppages caused by accidents
up ahead" (Cascio v Metz, 305 A.D.2d 354, 356).
although the injured plaintiff opined at his deposition that
the vehicle driven by Murphy failed to maintain a safe
distance behind the vehicle driven by Simeus, Simeus did not
similarly claim that Murphy was driving too close behind him.
Murphy also testified at his deposition that he maintained a
safe distance between his vehicle and the vehicle operated by
Simeus. Moreover, if the accident resulted from the
unexpected presence of the construction sign in the right
lane, it cannot be said that Murphy failed to account for a
foreseeable or normally potential hazard. Thus, as the
plaintiffs failed to show that allowing Ocon/Murphy to plead
the affirmative defense of the emergency doctrine lacked