Opinion
694 CA 19-01928
12-23-2020
Gregory D. STRYKER, Plaintiff-Respondent, v. James T. CONNERS and Conners and Conners, Inc., Defendants-Appellants.
HAGELIN SPENCER LLC, BUFFALO (RICHARD J. PORTER OF COUNSEL), FOR DEFENDANTS-APPELLANTS. HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HAGELIN SPENCER LLC, BUFFALO (RICHARD J. PORTER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue is unanimously dismissed and the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle he was operating was rear-ended by a vehicle driven by defendant James T. Conners (defendant) and owned by defendant Conners and Conners, Inc. Following a jury trial, the jury determined that defendant was faced with a sudden condition that could not have been reasonably anticipated, but that his response to the emergency was not that of a reasonably prudent person. Defendants appeal from an order denying their posttrial motion seeking an order setting aside the verdict in part and directing a judgment in their favor pursuant to CPLR 4404 (a) or, in the alternative, granting leave to reargue their prior motion for a directed verdict pursuant to CPLR 4401. At the outset, we note that no appeal lies from an order denying a motion seeking leave to reargue, and thus that part of defendants' appeal must be dismissed (see Empire Ins. Co. v. Food City , 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ).
Defendants contend that Supreme Court erred in refusing to set aside that part of the verdict that was not in their favor because the jury's finding with respect to the first question on the verdict sheet, i.e., that defendant was faced with a sudden condition that could not have been reasonably anticipated, precluded a finding of negligence. Defendants further contend that, consequently, the second question on the verdict sheet, which asked whether defendant's response to the emergency was "that of a reasonably prudent person," should not have been submitted to the jury. Defendants failed to preserve those contentions for our review. Defendants did not object to the court's instructions to the jury concerning the emergency doctrine (see Healey v. Greco , 174 A.D.2d 877, 878, 571 N.Y.S.2d 164 [3d Dept. 1991] ), nor did they object to the court's use of the verdict sheet as given (see Cavallaro v. Somaskanda [Appeal No. 2], 280 A.D.2d 1002, 1003, 720 N.Y.S.2d 431 [4th Dept. 2001] ; Schmidt v. Buffalo Gen. Hosp. , 278 A.D.2d 827, 828, 718 N.Y.S.2d 514 [4th Dept. 2000], lv denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75 [2001] ).
We reject defendants' further contention that the verdict was inconsistent. The common-law emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance ..., the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context ... provided the actor has not created the emergency" ( Caristo v. Sanzone , 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001] [internal quotation marks omitted]; see Lifson v. City of Syracuse , 17 N.Y.3d 492, 497, 934 N.Y.S.2d 38, 958 N.E.2d 72 [2011] ; Colangelo v. Marriott , 120 A.D.3d 985, 986-987, 990 N.Y.S.2d 763 [4th Dept. 2014] ). A person facing an emergency is "not automatically absolve[d] ... from liability" ( Gilkerson v. Buck , 174 A.D.3d 1282, 1284, 105 N.Y.S.3d 739 [4th Dept. 2019] [internal quotation marks omitted]). In determining whether the actions of a driver are reasonable in light of an emergency situation, the factfinder must consider "both the driver's awareness of the situation and his or her actions prior to the occurrence of the emergency" ( id. ). Thus, contrary to defendants' contention, a driver confronted with an emergency situation may still be found to be at fault for a resulting accident where, as here, his or her reaction is found to be unreasonable (see Kizis v. Nehring , 27 A.D.3d 1106, 1108, 811 N.Y.S.2d 509 [4th Dept. 2006] ; Sossin v. Lewis , 9 A.D.3d 849, 851, 780 N.Y.S.2d 448 [4th Dept. 2004], amended on other grounds 11 A.D.3d 1045, 782 N.Y.S.2d 390 [4th Dept. 2004] ).
We also reject defendants' contention that the court erred in refusing to set aside the verdict in part as against the weight of the evidence (see CPLR 4404 [a] ). "[A] verdict may be set aside as against the weight of the evidence only if the evidence so preponderate[d] in favor of [defendants] that [the verdict] could not have been reached on any fair interpretation of the evidence" ( Killian v. Captain Spicer's Gallery, LLC , 170 A.D.3d 1587, 1588, 96 N.Y.S.3d 433 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6318180 [2019] [internal quotation marks omitted]). Applying that principle here, we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have found that defendant was negligent. The evidence established, inter alia, that defendant began to experience symptoms of illness two hours prior to the collision. His symptoms progressively worsened for two hours, and defendant became aware that he was in need of medical attention. Nevertheless, defendant continued to drive and suffered a stroke, which caused the vehicle he was driving to strike plaintiff's vehicle. Under the circumstances of this case, the evidence did not so greatly preponderate in favor of defendants that the jury's verdict could not have been reached on any fair interpretation of the evidence (see generally McMillian v. Burden , 136 A.D.3d 1342, 1343, 24 N.Y.S.3d 822 [4th Dept. 2016] ; Herbst v. Marshall , 89 A.D.3d 1403, 1403, 933 N.Y.S.2d 461 [4th Dept. 2011] ; Petrovski v. Fornes , 125 A.D.2d 972, 973, 510 N.Y.S.2d 366 [4th Dept. 1986], lv denied 69 N.Y.2d 608, 514 N.Y.S.2d 1026, 507 N.E.2d 322 [1987] ).
Finally, we have reviewed defendants' remaining contention and conclude that it does not warrant modification or reversal of the order.