Fusco v. Hobbes

• Decision Date: 18 March 2005
• Docket Number: CA 04-01853.
• Citation: Fusco v. Hobbes, 16 AD3d 1031, 791 N.Y.S.2d 790, 2005 NY Slip Op 2012 (N.Y. App. Div. 2005)
• Parties: JENNIFER FUSCO et al., Respondents, v. NECIA HOBBES, Respondent, and JASON HOBBES et al., Appellants.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 1031

791 N.Y.S.2d 790

2005 NY Slip Op 02012

JENNIFER FUSCO et al., Respondents, v. NECIA HOBBES, Respondent, and JASON HOBBES et al., Appellants.

CA 04-01853.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

March 18, 2005.

Appeal from a judgment of the Supreme Court, Erie County (Donna M. Siwek, J.), entered November 28, 2003. The judgment, upon a jury verdict, adjudged that plaintiff Jennifer Fusco and defendants were negligent and that the negligence of defendant Jason Hobbes was the sole proximate cause of the accident.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating those parts against defendants Jason Hobbes and Wayne Hobbes and as modified the judgment is affirmed without costs, and a new trial is granted on liability against those defendants in accordance with the following memorandum: Plaintiffs commenced this action seeking to recover damages for injuries sustained by Jennifer Fusco (plaintiff) when her vehicle collided first with a vehicle driven by defendant Necia Hobbes and then within seconds collided with a vehicle driven by defendant Jason Hobbes, Necia's brother. Defendant Wayne Hobbes, the father of Necia and Jason, owned the vehicles they were driving. Jason and Wayne appeal from a judgment entered following a bifurcated trial on liability. The jury found that, although plaintiff and defendants Necia and Jason were negligent, the sole proximate cause of the accident was the negligence of Jason. We reject at the outset the contention of Jason and Wayne that Supreme Court erred in denying that part of the motion of defendants for summary judgment dismissing the complaint against Jason and Wayne inasmuch as they failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

We agree with Jason and Wayne, however, that the court erred in refusing to charge the emergency doctrine and that a new trial on liability therefore is required with respect to them. Viewing the evidence, as we must, in the light most favorable to the parties requesting the charge, we conclude that there is a reasonable view of the evidence that Jason was faced with an emergency (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991], rearg denied 77 NY2d 990 [1991]). The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought,...