ALEXANDER LIFSON EXECUTOR OF THE ESTATE OF IRENE LIFSON DECEASED PLAINTIFF APPELLANT RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from a judgment of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered November 10, 2008.   The judgment, inter alia, apportioned liability between defendant City of Syracuse and decedent upon a jury verdict.

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

We reject the contention of plaintiff on his appeal that the court erred in denying that part of his motion to set aside the verdict with respect to Klink as against the weight of the evidence.  “A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” (Jaquay v. Avery, 244 A.D.2d 730, 730-731;  see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746;  Tout v. Zsiros, 49 AD3d 1296, lv denied 10 NY3d 713).   Here, the evidence, including Klink's trial testimony, established that Klink did not observe decedent when Klink began to turn at the intersection because decedent was not in the unmarked crosswalk and that he did not see her thereafter because he was suddenly and unexpectedly blinded by sun glare.   The jury was entitled to credit that evidence in favor of Klink, and thus it cannot be said that the verdict with respect to Klink could not have been reached on any fair interpretation of the evidence (see generally Sullivan v. Goksan, 49 AD3d 344;  Ellis v. Borzilleri, 41 AD3d 1170, 1171;  McDermott v. Coffee Beanery Ltd., 9 AD3d 195, 207).   Furthermore, we reject plaintiff's contention that sun glare does not constitute a defense to negligence as a matter of law (see e.g. Benitez v. Olson, 6 AD3d 560, 561-562, lv dismissed in part and denied in part 3 NY3d 753).   Also contrary to the contention of plaintiff, the court properly denied that part of his motion to set aside the verdict finding that decedent was 85% at fault as against the weight of the evidence.   There is a fair interpretation of the evidence supporting a finding that decedent was outside of the unmarked crosswalk, requiring her to yield the right-of-way in accordance with Vehicle and Traffic Law § 1152(a).

We reject plaintiff's contention that the court erred in giving an emergency instruction with respect to the assertion of Klink that he failed to observe decedent because he was blinded by sun glare.   An emergency instruction is appropriate when the court determines that there is a reasonable view of the evidence supporting the occurrence of “a sudden and unforeseen emergency not of the actor's own making ․ [that] ‘leaves little or no time for thought, deliberation or consideration’ “ (Caristo v. Sanzone, 96 N.Y.2d 172, 175, quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, rearg. denied 77 N.Y.2d 990).   Here, there is a reasonable view of the evidence establishing that the sun glare was a sudden and unforeseen circumstance justifying the emergency instruction.   The fact that the court deviated from PJI 2:14 to take into account the language of Caristo in the instruction did not render it erroneous.   We reject plaintiff's further contention that the court's instruction defining the location of the unmarked crosswalk was also erroneous.   That instruction was properly based on the definition of an unmarked crosswalk set forth in Vehicle and Traffic Law § 110(a) and the definition of a sidewalk set forth in section 144, as well as the application of section 110 to a “T” intersection (see Fan v. Buzzitta, 42 A.D.2d 40, 41-43;  see generally Vanbenschoten v. Pitarys, 284 A.D.2d 912).

Contrary to the contention of the City on its cross appeal, the court properly admitted in evidence documents pertaining to its initial traffic plan for the intersection.   Those documents were admitted for the limited purpose of providing a starting point for the ongoing duty of the City to review its traffic plan in light of the actual operation of the plan (see generally Lifson, 41 AD3d at 1293-1294).   We reject the further contention of the City that the court erred in failing to instruct the jury that it had qualified immunity with respect to the original traffic plan.   Although the court did not use the words “qualified immunity,” it properly advised the jury of the limited issue before it.   The City failed to preserve for our review its contention that the court erred in failing to instruct the jury that the City had a continuing duty to monitor the traffic situation at the intersection only when it was made aware of a dangerous traffic condition.   In any event, we note that there was in fact a citizen complaint concerning the traffic situation at that intersection made in 1993.   Finally, we reject the City's further contention that the verdict was inconsistent to the extent that the jury found that Klink was not negligent and that the City was 15% at fault (see generally Gaston v. Viclo Realty Co., 215 A.D.2d 174, lv denied 87 N.Y.2d 804, cert denied 517 U.S. 1169).

All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following Memorandum:  I respectfully dissent and would reverse because I agree with plaintiff on his appeal that Supreme Court erred in giving an emergency instruction with respect to the assertion of Derek J. Klink (defendant) that he failed to observe decedent because he was blinded by sun glare.

Plaintiff, as executor of decedent's estate, commenced this action alleging, inter alia, that defendant was negligent in failing to avoid the collision.   Following a trial, the jury found that Klink was not negligent, that the City was 15% at fault, and that decedent was 85% at fault.

Under the circumstances of this case, I conclude that the court erred in giving an emergency instruction.   In determining whether a party is entitled to such an instruction, a court is required “to make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a ‘qualifying emergency’ “ (Caristo v. Sanzone, 96 N.Y.2d 172, 175, quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, rearg. denied 77 N.Y.2d 990).   The emergency instruction is appropriate “where the evidence supports a finding that the party requesting the charge was confronted by ‘a sudden and unexpected circumstance [that] leaves little or no time for thought, deliberation or consideration’ “ (id. at 175, quoting Rivera, 77 N.Y.2d at 327).   However, “[a]n emergency instruction is not proper where the situation is neither sudden nor unexpected or could have been reasonably anticipated in light of the surrounding circumstances” (Smith v. Perfectaire Co., 270 A.D.2d 410;  see Muye v. Liben, 282 A.D.2d 661, 662).

This case is not unlike Caristo in which the Court of Appeals held that there was no qualifying emergency to justify an emergency instruction (96 N.Y.2d at 175).   The Court reasoned that, given the driver's “admitted knowledge of the worsening weather conditions, the presence of ice on the hill [could not] be deemed a sudden and unexpected emergency,” despite the fact that the driver had not encountered ice on the roadways before losing control of his vehicle (id.).   In my view, knowledge of weather conditions is akin to knowledge of lighting and/or sun conditions.   It is well settled that a driver is required to be aware of dangers existing from weather, traffic and other conditions, including lighting conditions (see Avila v. Mellen, 131 A.D.2d 408;  see generally PJI 2:77).   The defendant in Avila was driving eastbound and claimed that “he was temporarily blinded by the headlights of the westbound cars and thus ․ did not see [the plaintiff pedestrian] ․ until he was 10 feet or less away from her,” and the Second Department held that he was not entitled to an emergency instruction (id. at 409).

Patricia L. Morgan

Clerk of the Court