DALCHAND v. MISSIGMAN (2001)

Supreme Court properly granted the cross motion of Constance Missigman (defendant) to amend her answer to add an affirmative defense based upon the medical emergency doctrine.   A driver “who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen” (1A N.Y. PJI 218 [3d ed 2001];  see also, Ficorilli v. Thomsen, 262 A.D.2d 602, 603, 692 N.Y.S.2d 673;  State of New York v. Susco, 245 A.D.2d 854, 855, 666 N.Y.S.2d 321).   According to her deposition testimony, defendant was stopped in traffic behind the stopped vehicle of plaintiff Chandra Dalchand and experienced a painful foot cramp that caused her foot to slip from the brake.   Based on that deposition testimony, defendant is entitled to assert the affirmative defense of medical emergency (see, Reeg v. Hodgson, 1 Ohio App.2d 272, 274, 202 N.E.2d 310, 313).

Order unanimously affirmed without costs.

MEMORANDUM: