In Mendez v. The City of New York, the plaintiff testified that he was riding his motorcycle in congested traffic conditions when he was unexpectedly thrown from his motorcycle after hitting a pothole. He had been lying in the road for “less than a second” to approximately four seconds when he was hit by a minivan that had been traveling just behind him. After hitting the plaintiff, the van’s two front tires proceeded onto the sidewalk. The defendant van driver testified that plaintiff’s motorcycle was approximately six meters ahead of him when it fell, and that, after he saw the motorcycle fall, he turned his minivan towards the sidewalk to try to avoid the plaintiff.
Of note, Brizuela failed to raise the emergency doctrine as an affirmative defense in his answer. However, based upon the parties’ testimony, the lower court concluded that Brizuela had met his initial burden of establishing his entitlement to summary judgment based on the emergency doctrine.
The Appellate Division held that although the defense was not pleaded by defendant Brizuela in his answer, the deposition testimony set forth facts that constituted an emergency situation and the facts were well known to plaintiff. Further, it was found that defendant submitted evidence sufficient to establish that he was faced with a sudden and unforseen occurrence that was not of his own making. As such, the Appellate Division upheld the lower court’s ruling, granting the defendant’s motion for summary judgment.
Special thanks to Johan Obregon for his contribution.
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