| Karl v Terbush |
| 2009 NY Slip Op 04795 [63 AD3d 1359] |
| June 11, 2009 |
| Appellate Division, Third Department |
| Enan J. Karl et al., Respondents, v Wayne R. Terbush et al.,Appellants. |
—[*1] Scarzafava & Basdekis, Oneonta (Theodoros Basdekis of counsel), forrespondents.
Peters, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 23, 2008 inOtsego County, which denied defendants' motion for summary judgment dismissing thecomplaint.
While operating a vehicle owned by defendant Julia M. Terbush, defendant Wayne R.Terbush (hereinafter defendant) allegedly lost consciousness and collided with an oncoming carbeing driven by plaintiff Enan J. Karl. Plaintiffs thereafter brought this negligence action againstdefendants. Defendants then moved for summary judgment on the ground that the accident aroseas a result of a sudden and unforeseeable medical emergency suffered by defendant. SupremeCourt denied the motion, finding that issues of fact remained requiring a trial. We agree, andtherefore affirm.
" '[A]n operator of an automobile who experiences a sudden medical emergency will not bechargeable with negligence provided that the medical emergency was unforeseen' " (State ofNew York v Susco, 245 AD2d 854, 855 [1997], quoting Thomas v Hulslander, 233AD2d 567, 568 [1996]; see Hazelton vD.A. Lajeunesse Bldg. & Remodeling, Inc., 38 AD3d 1071, 1072 [2007]). Here,defendant's own testimony as well as his medical records established that, for the monthpreceding the accident, he experienced episodes of dizziness, lightheadedness and weaknesswhich increased in frequency shortly before the accident. The evidence further established thatdefendant felt lightheaded on the day of the accident, including while driving his vehicle.Notably, the record lacks any evidence as to the severity of defendant's lightheadedness while hewas operating his vehicle or how long he continued to drive while experiencing these [*2]symptoms. Viewing this evidence in the light most favorable toplaintiffs and according them the benefit of every favorable inference that can be drawntherefrom (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]; Brown v Haylor, Freyer & Coon, Inc.,60 AD3d 1188, 1190 [2009]), we agree with Supreme Court that issues of fact remain as towhether defendant's emergency was foreseeable (see Benamy v City of New York, 270AD2d 183, 183 [2000]; McGinn v New York City Tr. Auth., 240 AD2d 378, 379 [1997];Thomas v Hulslander, 233 AD2d at 568). Additionally, defendant's inconsistent andconflicting statements during his deposition testimony concerning the symptoms he experiencedprior to the accident necessitate a credibility determination to be resolved by a jury (see e.g. Casey v Ridge Assoc., 2 AD3d1145, 1145 [2003]).
Cardona, P.J., Lahtinen, Kane and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.