Opinion
CA 02-00425
October 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Michalek, J.), entered October 17, 2001, upon a jury verdict rendered in favor of defendants.
J. MICHAEL HAYES, BUFFALO, FOR PLAINTIFF-APPELLANT.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
On appeal from a judgment entered upon a jury verdict of no cause for action, plaintiff contends that Supreme Court erred in charging the jury on the emergency doctrine. We disagree. "Viewing the evidence, as we must, in the light most favorably towards giving the requested emergency doctrine instruction to the jury" ( Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 326, rearg denied 77 N.Y.2d 990), we conclude that "there is [a] reasonable view of the evidence supporting the occurrence of a `qualifying emergency'" ( Caristo v. Sanzone, 96 N.Y.2d 172, 175). The testimony at trial establishes that defendant Lea M. Fritz suddenly stopped her motor vehicle because she believed that something was about to enter the roadway in her path of travel. "Where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury" ( Kuci v. Manhattan Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924; see Rivera, 77 N.Y.2d at 327; Ferrer v. Harris, 55 N.Y.2d 285, 292-293, mot to amend remittitur granted 56 N.Y.2d 737, 806).