Opinion
165 CA 21-01095
04-29-2022
Jeffrey WOZNIAK, Plaintiff-Respondent, v. Richard A. DEMUNDA and Niagara Apothecary, Inc., Defendants-Appellants.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (BRENT C. SEYMOUR OF COUNSEL), FOR DEFENDANT-APPELLANT RICHARD A. DEMUNDA. CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF COUNSEL), FOR DEFENDANT-APPELLANT NIAGARA APOTHECARY, INC. DOLCE FIRM, BUFFALO (AARON C. GORSKI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (BRENT C. SEYMOUR OF COUNSEL), FOR DEFENDANT-APPELLANT RICHARD A. DEMUNDA.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E. LOFTUS OF COUNSEL), FOR DEFENDANT-APPELLANT NIAGARA APOTHECARY, INC.
DOLCE FIRM, BUFFALO (AARON C. GORSKI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for personal injuries he sustained when a vehicle owned and operated by defendant Richard A. Demunda, who was working as an employee of defendant Niagara Apothecary, Inc. (Niagara), left the roadway and struck several parked vehicles and pedestrians, including plaintiff. Defendants separately moved for summary judgment dismissing the complaint against them, contending, inter alia, that Demunda suffered an unforeseeable medical emergency that caused him to lose consciousness and that neither he nor Niagara could be charged with negligence as a result thereof (see generally Dalchand v. Missigman , 288 A.D.2d 956, 956, 732 N.Y.S.2d 791 [4th Dept. 2001] ). Plaintiff cross-moved for partial summary judgment on, inter alia, liability. Supreme Court denied the motions and cross motion. Defendants appeal and we now affirm.
It is well settled that "[a] driver ‘who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen’ " ( id. ; see Martinez v. Grimm , 151 A.D.3d 1847, 1848, 57 N.Y.S.3d 323 [4th Dept. 2017] ; see generally Fillette v. Lundberg , 150 A.D.3d 1574, 1575, 55 N.Y.S.3d 783 [3d Dept. 2017] ; Serpas v. Bell , 117 A.D.3d 712, 713, 985 N.Y.S.2d 288 [2d Dept. 2014] ; Rivera v. New York City Tr. Auth. , 54 A.D.3d 545, 549, 863 N.Y.S.2d 201 [1st Dept. 2008] ). A defendant moving for summary judgment on the sudden medical emergency doctrine must "establish the existence of the claimed medical emergency and its unforeseeable nature" by "competent or expert medical evidence" ( Pitt v. Mroz , 146 A.D.3d 913, 914, 45 N.Y.S.3d 206 [2d Dept. 2017] ; see Serpas , 117 A.D.3d at 713, 985 N.Y.S.2d 288 ).
Here, even assuming, arguendo, that defendants met their initial burden of proof by establishing that Demunda suffered an unforeseeable medical emergency, we conclude that the court properly denied the motions inasmuch as plaintiff raised triable issues of fact (see Karl v. Terbush , 63 A.D.3d 1359, 1360, 881 N.Y.S.2d 207 [3d Dept. 2009] ; Thomas v. Hulslander , 233 A.D.2d 567, 568, 649 N.Y.S.2d 252 [3d Dept. 1996] ; cf. State of New York v. Susco , 245 A.D.2d 854, 855-856, 666 N.Y.S.2d 321 [3d Dept. 1997] ).