Opinion
6134 Index 156875/14
03-29-2018
Clayton H. PUGH, Plaintiff–Respondent–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants–Appellants–Respondents.
Wison Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants-respondents. Gordon & Gordon, P.C., Forest Hills (Jason S. Matuskiewicz of counsel), for respondent-appellant.
Wison Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants-respondents.
Gordon & Gordon, P.C., Forest Hills (Jason S. Matuskiewicz of counsel), for respondent-appellant.
Friedman, J.P., Tom, Kapnick, Singh, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 30, 2017, which, denied the motion of defendants, New York City Housing Authority (N.Y.CHA) and Salvadore Oddo, for summary judgment dismissing the complaint, and denied plaintiff's cross motion to strike the twelfth affirmative defense, unanimously affirmed, without costs.
The motion court properly denied defendants' motion for summary judgment, as they did not establish their entitlement to application of the emergency doctrine as a matter of law (see Powers v. Kyong Kwan Min, 147 A.D.3d 401, 46 N.Y.S.3d 90 [1st Dept. 2017] ). On the contrary, defendants' moving papers presented inconsistent accounts of the alleged accident; thus, whether the individual defendant was presented with an emergency beyond his control is not an issue that can be resolved on summary judgment (see Moreno v. Golden Touch Transp., 129 A.D.3d 581, 12 N.Y.S.3d 57 [1st Dept. 2015] ; Powers, 147 A.D.3d at 404, 46 N.Y.S.3d 90).
Likewise, regardless of whether the motion court providently exercised its discretion to consider plaintiff's expert affidavit, it nonetheless correctly denied plaintiff's motion to strike defendants' twelfth affirmative defense asserting the emergency doctrine. On such a motion, the allegations set forth in the answer must be viewed in the light most favorable to the defendants ( 182 Fifth Ave. v. Design Dev. Concepts, 300 A.D.2d 198, 199, 751 N.Y.S.2d 739 [1st Dept. 2002] ), and "the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" ( 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542, 935 N.Y.S.2d 23 [1st Dept. 2011] ). Given the lack of consistency in the accounts of the alleged accident, plaintiff did not sustain his "heavy burden of showing that the defense is without merit as a matter of law" ( Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d 479, 481, 19 N.Y.S.3d 13 [2015] ; Calpo–Rivera v. Siroka, 144 A.D.3d 568, 42 N.Y.S.3d 19 [1st Dept. 2016] ).