Stoner v Parr

Stoner v Parr 2010 NY Slip Op 06082 [75 AD3d 541] July 13, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010

Bonnie Stoner, Respondent,
v
Aurelia Parr et al., Appellants.

—[*1] James R. McCarl, Montgomery, N.Y., for appellants.

Finkelstein & Partners, LLP, Newburgh, N.Y. (Andrew L. Spitz of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from (1) so much of an interlocutory judgment of the Supreme Court, Orange County (Onofry, J.), dated July 8, 2009, as, upon a jury verdict, found them 50% at fault in the happening of the accident, and (2) so much of an order of the same court dated September 11, 2009, as denied their cross motion pursuant to CPLR 4404 (a) which was to set aside the verdict and for a new trial.

Ordered that the interlocutory judgment and the order are affirmed insofar as appealed from, with one bill of costs.

Contrary to the defendants' contention, the Supreme Court properly declined to instruct the jury pursuant to PJI 2:14 regarding the emergency doctrine. Viewing the evidence presented at trial in the light most favorable to the defendants, the Supreme Court correctly determined that any emergency situation which may have existed had dissipated prior to the defendant driver's negligent operation of the vehicle which struck the plaintiff and, therefore, that there was no reasonable view of the evidence to support the requested instruction (see generally Caristo v Sanzone, 96 NY2d 172, 175 [2001]; Sweeney v Linde, 59 AD3d 948, 948-949 [2009]; Kizis v Nehring, 27 AD3d 1106, 1107 [2006]).

The defendants' remaining contentions are without merit. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.