Barath v. Marron

—On the Court’s own motion, it is Ordered that the unpublished decision and order of this Court dated October 13, 1998, in the above-entitled case, is recalled and vacated, and the following decision and order is substituted therefor: In an action to recover damages for personal injuries, the plaintiff appeals (1) from a judgment of the Supreme Court, Nassau County (Feuerstein, J.), dated October 29, 1996, which, upon a jury verdict in favor of the defendants, inter alia, dismisses the complaint insofar as asserted against the defendant Stephanie A. Moore, and (2) from a judgment of the same court, dated June 17, 1997, which, inter alia, dismisses the complaint insofar as asserted against the defendant Donald J. Marrón. Ordered that the judgments are affirmed, with one bill of costs. This negligence action stems from a three-car accident that occurred on the Southern State Parkway. The plaintiff was injured when the checkered cab in which she was a passenger, and which was operated by her husband Alex Barath, was [281] involved in a chain collision with vehicles operated by the defendant Donald J. Marrón and the defendant Stephanie A. Moore. Barath was in the lead vehicle, which was followed by the vehicle operated by Marrón, which was followed by the vehicle operated by Moore. After a jury trial, a verdict was returned in favor of the defendants and against the plaintiff. Contrary to the plaintiffs contention, and contrary to the view of our dissenting colleague, the trial court properly charged the jury with respect to the emergency doctrine. A party requesting the emergency doctrine instruction is entitled to have the jury so charged if “ ‘under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor’s * * * making” ” (Bond-Green v McNally, 233 AD2d 414, 415; Rivera v New York City Tr. Auth., 77 NY2d 322, 327; see also, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923, 924). Viewing the evidence in the light most favorable toward giving the requested emergency doctrine instruction to the jury (see, Rivera v New York City Tr. Auth., supra, at 326; see also, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., supra), we find support in the record for so charging the jury. Both the plaintiff and Moore testified that the vehicle operated by Barath had been suddenly cut off by another vehicle as the latter vehicle attempted to merge onto the Southern State Parkway. Barath was then forced to either stop or precipitously slow his vehicle. Marrón, who was approximately 24 to 25 feet behind the Barath vehicle, was traveling at about 30 miles per hour, and Moore, who was approximately the same distance behind the Marrón vehicle, was proceeding at the speed of traffic. Under these circumstances, the jury could have reasonably concluded that the defendants were faced with an emergency situation not of their own making that could not have been reasonably foreseen (see, Galitsis-Orengo v MCL Imports, 251 AD2d 285; Reid v Courtesy Bus Co., 234 AD2d 531; Dutcher v Fetcher, 183 AD2d 1052; Varsi v Stoll, 161 AD2d 590; Green v Meyer, 114 AD2d 352). Where, as here, a driver on the highway may be aware that cars may be present on an entrance ramp, a jury would not be precluded from deciding that the driver did not anticipate being suddenly cut off by the unknown car (see, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., supra; see also, Hornacek v Hallenbeck, 185 AD2d 561). Additionally, the jury would not be precluded from deciding that the defendants were not following too closely under the existing traffic conditions (see, Zwilling v Harrison, 269 NY 461; De-Cosmo v Hulse, 204 AD2d 953). [282] Moreover, the trial court properly denied the plaintiff’s motion to set aside the verdict as against the weight of the evidence, as a fair interpretation of the evidence supports the jury’s verdict (see, Shapira v Kruger, 231 AD2d 509, 510; Nicastro v Park, 113 AD2d 129, 132). The plaintiff’s remaining contention is without merit. Joy, J. P., Krausman and Goldstein, JJ., concur.