ARRICALE v. LEO

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Supreme Court, Appellate Division, Fourth Department, New York.

Nicholas ARRICALE and Vivian F. Arricale, Plaintiffs-Appellants, v. Renato LEO and General Motors Acceptance Corp., Defendants-Respondents.

Decided: June 14, 2002

Present:  PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, and LAWTON, JJ. Stamm, Reynolds & Stamm, Williamsville (Bradley J. Stamm of Counsel), for Plaintiffs-Appellants. Bouvier, O'Connor, LLP, Buffalo (Norman E.S. Greene of Counsel), for Defendant-Respondent Renato Leo. Hagelin & Bischof, LLC, Buffalo (Michael T. Hagelin of Counsel), for-Defendant Respondent General Motors Acceptance Corp.

 Plaintiffs appeal from an amended judgment entered upon a jury verdict in favor of defendants.   Contrary to plaintiffs' contention, Supreme Court properly charged the jury with the Pattern Jury Instructions entitled “Statutory Standard of Care-Vehicle and Traffic Law Violation-Driving to Left of Official Highway Markings” (PJI3d 2:26A [2000] [now PJI3d 2:26A (2002) ] ) and “Motor Vehicle Accidents-Skidding” (PJI3d 2:84 [2000] [now PJI3d 2:84 (2002) ] ).   Renato Leo (defendant) testified that he crossed over the double yellow line in the center of the roadway and into plaintiff Vivian F. Arricale's lane of traffic because his vehicle was out of control, having skidded as a result of either snow or ice on the road surface.   A violation of Vehicle and Traffic Law § 1126(a) “may be excused if [the driver] exercised reasonable care in an effort to comply” (Espinal v. Sureau, 262 A.D.2d 523, 524, 691 N.Y.S.2d 335;  see Dance v. Town of Southampton, 95 A.D.2d 442, 445, 467 N.Y.S.2d 203).   Here, defendant violated that statute when he skidded out of control and crossed the double yellow line.   That violation, however, is only prima facie evidence of negligence (see Donitz v. Mui, 247 A.D.2d 508, 508, 669 N.Y.S.2d 326).   A triable issue of fact exists whether the conduct of defendant was reasonable under the circumstances, thereby excusing his violation of the statute (see Espinal, 262 A.D.2d at 524, 691 N.Y.S.2d 335).   Contrary to plaintiffs' contention, the excuse offered for the statutory violation need not rise to the level of an emergency that would entitle defendants to a charge on the emergency doctrine.   A violation of the Vehicle and Traffic Law may be excused by “emergency or other unusual circumstances” (1A NYPJI3d 239 [2000] [now 1A NYPJI3d 251 (2002) ] ).

 Plaintiffs further contend that the court's comments concerning the closing of the courthouse during the trial due to a snowstorm, coupled with the court's charge pursuant to PJI3d 2:84, amounted to a de facto charge on the emergency doctrine.   Plaintiffs did not object to the court's comments, however, and thus failed to preserve that contention for our review.

 We reject plaintiffs' contention that the court erred in refusing to permit the investigating officer to testify concerning his opinion that defendant's speed was unsafe.   That testimony was properly excluded because it lacked a sufficient foundation (see Barker v. Mattison Mach. Works, 244 A.D.2d 934, 935, 668 N.Y.S.2d 120).   Even assuming, arguendo, that the court erred in excluding the opinion testimony, we conclude that the error is harmless.   The officer testified without objection that he filled in the box on the police report indicating that excessive speed was a contributing cause of the accident.

It is hereby ORDERED that the amended judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: