Fox v. McClellan

Summary

The New York Appellate Division, Fourth Department, affirmed an order denying the defendant's motion for summary judgment in a personal injury action arising from a vehicle striking a road construction worker. The court held that the defendant failed to establish as a matter of law that he faced a sudden and unexpected emergency under the emergency doctrine. The existence of an emergency and the reasonableness of the driver's response generally presented issues of fact.

Holdings

1. Defendant failed to establish as a matter of law that he was confronted with a sudden and unexpected emergency to which he did not contribute; therefore, summary judgment dismissing the amended complaint was properly denied.
2. Because defendant did not establish entitlement to judgment as a matter of law, the court properly denied summary judgment regardless of the sufficiency of plaintiff's opposition papers.

Questions Presented

1. Whether defendant established as a matter of law that the emergency doctrine entitled him to summary judgment dismissing the amended complaint.
2. Whether Supreme Court properly denied defendant's motion for summary judgment despite the alleged insufficiency of plaintiff's opposition papers.

Disposition

affirmed