Opinion
(1494) CA 01-01017.
November 9, 2001.
(Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ.
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 N Y PJI 218 [3d ed 2001]; see also, Ficorilli v. Thomsen, 262 A.D.2d 602, 603; State of New York v. Susco, 245 A.D.2d 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 N.E.2d 310, 313).