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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))

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