You are here: / / DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT...
,

DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff passenger’s motion for summary judgment against defendant driver should not have been granted and defendant’s motion to amend the pleadings to add the emergency doctrine defense should have been granted. Defendant lost control of the car but raised an issue of fact whether the cause of the accident was black ice:

… [P]laintiff submitted evidence establishing that defendant lost control of the vehicle. The burden then shifted to defendant, who came forward with the exculpatory explanation that he encountered black ice on the roadway, which constituted an emergency. When the evidence is viewed in the light most favorable to defendant … , there is a triable issue of fact whether there was black ice and thus whether an emergency existed at the time of the accident. * * *

… [T]he court erred in denying that part of defendant’s cross motion for leave to amend the answer to assert an emergency doctrine defense. Motions for leave to amend pleadings should be freely granted in the absence of prejudice, and “[m]ere lateness is not a barrier” … . The fact that defendant’s request was made nine days after the filing of the note of issue does not render the request untimely … . Indeed, “[w]here no prejudice is shown, the amendment may be allowed during or even after trial” … , and here, the record is devoid of any potential prejudice flowing from the proposed amendment. Greco v Grande, 2018 NY Slip Op 02916, Fourth Dept 4-27-18

​NEGLIGENCE (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (AMEND PLEADINGS, DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

You might also like
ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT).
DEFENSE COUNSEL MISTAKENLY FAILED TO NOTIFY THE PROSECUTION OF AN ALIBI WITNESS; DEFENSE COUNSEL ADMITTED HE HAD NO EXCUSE FOR HIS MISTAKE; BECAUSE THE FAILURE WAS NOT DELIBERATE AND WAS NOT AN ATTEMPT TO GAIN A TACTICAL ADVANTAGE, THE DEFENSE MOTION FOR PERMISSION TO SERVE A LATE NOTICE OF ALIBI SHOULD HAVE BEEN GRANTED (FOURTH DEPT),
REMEDIES FOR BREACH OF CONTRACT WERE NOT CONFINED TO THE REMEDIES MENTIONED IN THE CONTRACT; THERE WAS NO INDICATION THE REMEDIES DESCRIBED WERE ‘SOLE AND EXCLUSIVE’ (FOURTH DEPT). ​
Whether an Element of a Crime Has Been Proven Beyond a Reasonable Doubt Can Now Be Determined in a “Weight of the Evidence” Review/Such a Determination Is a Matter of Law Identical to a Determination the Evidence Is Legally Insufficient/After Making Such a “Legal” “Weight of the Evidence” Determination, the Court Is Not Constrained to Dismiss the Indictment As It Is When It Makes a “Factual” Determination a Conviction Is Not Supported by the Weight of the Evidence
THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).
NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL.
THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT BECAUSE IT DID NOT ALLEGE THE SOLE MOTIVATION OF DEFENDANTS WAS DISINETERESTED MALEVOLENCE (FOURTH DEPT). ​
THE SENTENCING COURT DID NOT CONSIDER THE REQUIRED FACTORS WHEN SENTENCING DEFENDANT AFTER DEFENDANT’S VIOLATION OF THE TERMS OF INTERIM PROBATION; SENTENCE VACATED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM... MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT...