Practice point: Here, defendant submitted evidence sufficient to establish that
he was faced with a sudden and unforseen occurrence that was not of his
own making. Plaintiff testified that he was riding his motorcycle in
congested traffic conditions when he was unexpectedly thrown from his
motorcycle after hitting a pothole while defendant was driving a minivan
behind him. Plaintiff stated that he had been lying in the road for
"less than a second" to approximately four seconds when he was hit by
the minivan and that the van's two front tires then went onto the
sidewalk. Defendant testified that plaintiff's motorcycle was
approximately six meters ahead of him when it fell, and that, after he
saw the motorcycle fall, he turned his minivan towards the sidewalk to
avoid plaintiff.
Given the parties' testimony, the court correctly determined that
defendant had met his initial burden of establishing his entitlement to
summary judgment based on the emergency doctrine In opposition, plaintiff failed to raise a
triable issue as he presented only unsubstantiated assertions and
speculation that defendant may have breached a duty of care.
Student note: The motion court providently exercised its discretion in determining
that it could consider the emergency doctrine affirmative defense.
Although the defense was not pleaded in the
answer, the deposition testimony set forth facts that constituted an
emergency situation and the facts were well-known to plaintiff.
Case: Mendez v. City of New York, NY Slip Op 06305 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Proving proper service.
