YOON v. RECHLER

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

Kyoung Ran YOON, et al., plaintiffs, v. Bonnie S. RECHLER, defendant,

Zachary R. Rechler, et al., appellants.  (and third-party titles) (Action No. 1). Hyung Kan Yoon, etc., et al., plaintiffs, v. Bonnie S. Rechler, et al., defendants.  (Action No. 2).

Country-Wide Insurance Company, a/s/o Ok Hyun and Kyoung R. Yoon, respondent, v. Bennett Rechler, et al., appellants.  (Action No. 3).

Decided: December 22, 2003

A. GAIL PRUDENTI, P.J., NANCY E. SMITH, LEO F. McGINITY, and BARRY A. COZIER, JJ. Perez, Furey & Varvaro, Uniondale, N.Y. (John W. Quinn of counsel), for appellants. Parker & Waichman (DiJoseph & Portegello, New York, N.Y. [Arnold E. DiJoseph III] of counsel), for plaintiffs in Action No. 1. Purcell & Ingrao, P.C., Mineola, N.Y. (Ralph P. Franco of counsel), for Gold Key Lease, Inc., second third-party defendant in Action No. 1. Michael S. Lamonsoff, New York, N.Y. (Louis S. DeSorbo of counsel), for plaintiffs in Action No. 2.

In three related actions, inter alia, to recover damages for personal injuries, etc., the defendants in Action No. 3 appeal, as limited by their brief and by letters dated January 24, 2003, and July 22, 2003, from so much of an interlocutory judgment of the Supreme Court, Queens County (Schulman, J.), dated August 19, 2002, as, upon a jury verdict, is against them on the issue of liability, and Zachary R. Rechler, a defendant in Action No. 1, also appeals from the interlocutory judgment.

ORDERED that the appeal by Zachary R. Rechler is dismissed as withdrawn;  and it is further,

ORDERED that the interlocutory judgment is reversed insofar as appealed from in Action No. 3, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of liability in Action No. 3 in accordance herewith;  and it is further,

ORDERED that any award of costs is to abide the event of a new trial.

The Supreme Court erred in denying the request by the defendants in Action No. 3 to instruct the jury on the emergency doctrine.   Bonnie Rechler testified that, while driving her vehicle in the right lane of Northern Boulevard in eastern Queens at a speed of between 30 and 35 miles per hour, the vehicle allegedly driven by Kyoung Ran Yoon, a plaintiff in Action No. 3, abruptly crossed into her lane about one car-length in front of her in an attempt to make a right turn from the middle lane of the three-lane roadway.   Ms. Rechler's vehicle collided with the Yoon vehicle.   Where, as here, a reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, the reasonableness of that conduct in the face of the emergency is for the jury to determine (see Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110).   Consequently, a new trial on the issue of liability in Action No. 3 is warranted.

In light of our determination, we do not reach the parties' remaining contentions.

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