Dalchand v. Missigman

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the cross motion of Constance Missigman (defendant) to amend her answer to add an affirmative defense based upon the medical emergency doctrine. A driver “who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen” (1A NY PJI 218 [3d ed 2001]; see also, Ficorilli v Thomsen, 262 AD2d 602 , 603; State of New York v Susco, 245 AD2d 854 , 855). According to her deposition testimony, defendant was stopped in traffic behind the stopped vehicle of plaintiff Chandra Dalchand and experienced a painful foot cramp that caused her foot to slip from the brake. Based on that deposition testimony, defendant is entitled to assert the affirmative defense of medical emergency (see, Reeg v Hodgson, 1 Ohio App 2d 272 , 274, 202 NE2d 310 , 313). (Appeal from Order of Supreme Court, Onondaga County, McCarthy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Lawton, JJ.