

Pitt v Mroz (2017 NY Slip Op 00334)





Pitt v Mroz


2017 NY Slip Op 00334


Decided on January 18, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 18, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.


2016-04099
 (Index No. 18680/12)

[*1]Christopher L. Pitt, respondent,
vAdam Mroz, et al., appellants.


Leon R. Kowalski (McGaw, Alventosa & Zajac, Jericho, NY [Ross P. Masler], of counsel), for appellants.
Hach & Rose, LLP, New York, NY (Michael A. Rose and Robert F. Garnsey of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated November 24, 2015, as denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen (see Serpas v Bell, 117 AD3d 712, 713; Doran v Wells, 101 AD3d 937; Romero v Metropolitan Suburban Bus Auth., 25 AD3d 683, 684; State of New York v Susco, 245 AD2d 854, 855; Thomas v Hulslander, 233 AD2d 567, 568; Abish v Cetta, 155 AD2d 495). Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, because they did not come forward with competent or expert medical evidence to establish the existence of the claimed medical emergency and its unforeseeable nature (see Serpas v Bell, 117 AD3d at 713). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied their motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
RIVERA, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


