Jason Pelletier, Appellant,v.Brittany Lahm et al., Respondents.BriefN.Y.October 15, 2014P,\TRlCK T. BURKE ROllER'!' M. MIELE* RICHARD B. GOLDEN MrCH.\EL K. BURl-ill KELLY M. NAUGIITON H PHYLLIS A. INGRAM"** AS!JJ.EYN. TORRE* JOSEPH P. McCJJNN (19-11-2000) * ADt.!J"JTHD!NNE\VYORK&NEWlf'.RSEY * * ADnnnv.n IN NmvYoRK & lvL\S5'-\CHUSE1TS t-H Jwi\!J"lTI\1) INNEWYORt-:.&CONNECTICUT New York State Court of Appeals Clerk's Office 20 Eagle Street Albany, New York BURKE, MIELE & GOLDEN, LLP 40 i'v!ATl'l JEWS STRE!'.T SUITE 209 POST 0I'I'ICEBOX 216 GOSHEN, N.Y. 10924 (845) 294-4080 f'A.>: (8.f5) 29.f-767.l August 21, 2014 12207-1095 ROCKL1\~D COUNTY Orf'ICE: 499 ROUTE 304 NEW CnY NY 10956 PLEt\SP. REPlY '1"() GOSI lEN OFFICE Attention: Andrew W. Klein, Chief Clerk and Legal Counsel to the Court Re: Pelletier v. Lahm APL-2014-00189 Dear Honorable Clerk: Plaintiff-Appellant, Jason Pelletier, respectfully submits this letter brief pursuant to the instruction ofthis Court contained in its correspondence dated July 29, 2014 within the time limit prescribed for filing. Also enclosed and made a part of Appellant's submission are the Appellate Division briefs of all parties and the Appellate Division Record. The Court is also respectfully referred to the Appellate Division Decision dated November 20, 2013 annexed to Plaintiff-Appellant's Preliminary Appeal Statement on file with this Court and to the Appellate Division Decision dated July 11, 2014 granting Appellant Leave to Appeal to this Court also annexed thereto. STATEMENT SHOWING THAT THE COURT HAS JURISDICTION TO ENTERTAIN THE APPEAL AND TO REVIEW THE QUESTIONS RAISED A) This Court has the jurisdiction of this Appeal because it originated in the Supreme Court and is from an order of the Appellate Division which finally determines the action in regard to Plaintiff-Appellant Jason Pelletier, and is not appealable as of right pursuant to CPLR 5602. The Appellate Division granted the Plaintiff-Appellant's motion for Leave to Appeal to this Court by Order dated July 11, 2014. B) This court has jurisdiction to entertain the questions raised, because they were raised in the courts below. The questions raised are as follows: 1) Was the Court's submission of the Emergency Charge (PJI 2:14) to the jury in error? (Plaintiff-Appellant's Brief, p. 1-26, R. 381-399,424-431, Reply Brief, p.l-12) 2) Should the verdict have been set aside as against the weight of the evidence? (Plaintiff-Appellant's Brief, p. 26-29, R. 381-399) PRELIMINARY STATEMENT Plaintiff-Appellant appealed from an Order and Judgment of the Supreme Court of Rockland County, (Garvey, J.) entered in the office of the Rockland County Clerk on June 14, 2011 and September 1, 2011, respectively (R. 7-18, 5-6.2). Following a bi-furcated jury trial, the trial court issued the emergency charge in favor of Defendant-Respondent Brittany Lahm, over the objection of Plaintiff-Appellant. The jury then found that Defendant-Respondent Lahm was not negligent in connection with the motor vehicle collision. (R. 9-10, 272, 380.1-380.8) Thereafter, the trial court denied the Plaintiff-Appellant's 4404(a) motion to set aside the verdict as a matter of law based upon the erroneous issuance of the emergency charge and/or as against the weight of the evidence and judgment was entered against the Plaintiff. (R. 7-18). The trial court held that "it was properly left to the jury to decide whether a qualifying emergency existed." The Appellate Division, Second Department, affirmed the trial court's determination with three judges affirming and one judge dissenting, by order dated November 20, 2013 and held "'the trial court properly charged the jury on the emergency doctrine" noting that "the trial court must 'make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a 'qualifying emergency"' (Caristo v. Sanzone, 96 NY2d 172, 175 quoting Rivera v. New York City Tr. Auth., 77 NY2d 322, 327; see Lifton v. City of Syracuse, 17 NY3d 492, 497)." 2 According to the dissenting opm10n of Justice Roman, she "respectfully disagree(s) with the majority's conclusion that the trial court properly instructed the jury on the emergency doctrine." Justice Roman found that the circumstances present did not "present a situation envisioned by the emergency doctrine." Justice Roman concluded that "viewing Brandon's conduct in totality, the situation was neither sudden nor unexpected, and, in fact, could have been reasonably anticipated in light of the surrounding circumstances," and that it "cannot be said that Brittany did not have time for 'thought, deliberation, or consideration" in the face of Brandon's behavior (Caristo v. Sanzone, 96 N.Y.2d 172, 174 2001)." Rather, according to Justice Roman, "the record reveals that Brittany had a full opportunity to reflect on the ongoing situation, which occurred over a span of approximately 15-20 minutes." Importantly for purposes of this appeal, Justice Roman underscored the significance of this case to the ongoing scope of the emergency doctrine in this State, stating that the facts presented in this action do "not present a situation envisioned by the emergency doctrine." Here, Justice Roman correctly found that the Respondent "Brittany was aware of Brandon's inappropriate, distracting, and dangerous behavior" that occurred over a span of approximately 15-20 minutes and "chose to maintain her speed at 65 miles per hour rather than take appropriate measures to ensure the safe operation of the vehicle." It is clear that Defendant-Respondent Brittany Lahm failed to perceive the potential hazards associated with that misconduct including its effect on her operation of the vehicle. The result was that Defendant-Respondent failed to operate her motor vehicle in a reasonably safe manner for those traveling on the roadway and within her vehicle when she was confronted with Brandon's culminating act of pulling the second bikini string at her mid-back. Defendant-Respondent's failure to act in the face of her passenger's repeated "inappropriate, distracting, and dangerous behavior" "over a span of approximately 15-20 minutes" (Justice Roman) is far outside of the scope of the situations envisioned by the emergency doctrine, and those circumstances to which the charge has been applied. The Appellate Division Second Department granted Plaintiff- Appellant's motion requesting leave to appeal to the Court of Appeals and certified the following question to the Court of Appeals in its Order dated July 11, 2014: Was the Decision and Order of this Court dated November 20, 2013, properly made? In the opinion of all four Justices of the original 3 appellate panel below, "questions of law have arisen, which, in our opinion ought to be reviewed by the Court of Appeals."1 The limited scope of the emergency doctrine was not intended to extend to circumstances such as those present in this case. Indeed, this Court's affirmance of the Appellate Division and lower court's erroneous decisions will have the unwarranted effect of greatly expanding the scope of the emergency doctrine to situations not historically envisioned and will enable juries to evaluate a defendant's conduct in a light more favorable than intended under the established jurisprudence of this State. Here, the totality of the circumstances warrants a reversal by this Court. STATEMENT OF FACTS A) The car ride On July 12, 2008, Defendant-Respondent Brittany Lahm ("Respondent") was operating a vehicle owned by her father, the Defendant- Respondent Phillip Lahm. (R. 54) There were four passengers in the vehicle (all 19 years of age), including the Plaintiff-Appellant Jason Pelletier ("Appellant"), Joe Massula, and Brandon Berman (the "decedent") who were seated in the rear. Brandon was behind the front-seated passenger (R. 58, 69-70, 187-188). Appellant was seated behind Respondent (R. 69) and Joe Massula was in between them in the middle rear seat (R. 69). They were on their way home from a day at the New Jersey shore (R. 62). It was decedent's birthday and at the time they embarked on their trip home, Respondent assumed the decedent Brandon Berman was "on something" that day (R. 61, 62). B) The ongoing, inappropriate, distracting and dangerous acts of behavior by Brandon Berman during the last 15-20 minutes prior to the accident In sequential order, based upon the evidence in the Record, Respondent's passenger, the decedent Brandon Berman spit chewing tobacco out of the window, opened an umbrella inside the vehicle, leaned 1 The Court is respectfully referred to the Appellate Division Decision dated November 20, 2013 and the Appellate Division Decision dated July 11, 2014 granting Leave to Appeal to this Court attached as Exhibits to Plaintiff-Appellant's Preliminary Appeal Statement that is on file with this Court. 4 halfway out of the window, used the umbrella to clean the tobacco off the exterior of the vehicle, and then stuck his feet over the center console into the faces of Respondent and her front seated passenger for approximately 30 seconds (R. 74-75, 80-83, 129,131). These acts of distracting and dangerous misconduct escalated and became increasingly directed toward Respondent during the approximately 15-20 minutes before the accident occurred, and took place all before he committed the final two acts: (1) the untying of Respondent's neck bikini string, and (2) the untying of her mid- back bikini string, in the last 15-20 seconds before the accident occurred (R. 72-84, 104-1 06). C) Respondent Brittany Lahm's awareness of the prevailing and ongoing conditions in her vehicle committed by the decedent, Brandon Berman Respondent was fully aware of the prevailing conditions (Brandon's ongoing, in appropriate, distracting and dangerous behavior) occurring within her vehicle while she drove 65 mph on a highway (R. 72-75, 78-83, 89, 129, 134, 348). In response to those conditions, she admittedly engaged the window locks (thereby containing the decedent's erratic behavior to the vehicle's confines), looked at him and called the decedent an "idiot." (R. 75, 78, 79-80) She admittedly did not reduce her speed or in any manner alter the operation of her vehicle (R. 83, 133). She admitted she was aware that decedent was "laughing" as he put his feet in her face, that he was "joking around," he thought it was "fun and games," and that he was trying to be funny" (R. 131 ). She knew he did not consider that what he was doing was "stupid." (R.131 ). Nonetheless she continued to drive 65 mph and "yelled" at him (R. 133). In her own words, she was "pissed" (R. 129-130). D) Brandon's final two acts of misconduct and Respondent Lahm's reaction: The conditions existing wholly within the Respondent's vehicle continued to escalate and culminated with what Appellant confirmed was "another distraction" (R. 83). Decedent Brandon Berman first untied Respondent's bikini string tied around her neck (R.83, 84). Respondent deliberately reacted to the untying of the first bikini string around her neck-- while continuing to operate her vehicle at 65 mph -- by (1) releasing her right hand from the steering wheel, (2) holding onto her top, (3) yelling at the decedent, (4) holding on to the steering wheel with her left hand and her 5 bikini top with her right hand, and (5) leaning forward to allow her front- seated passenger tore-tie the bikini neck string (R. 83-87, 89, 93-94). Then, second, and simultaneously with the completion of the neck bikini string being re-tied by Respondent's front-seated passenger, and while Respondent was still leaning forward, decedent Brandon pulled the second bikini string tied around the middle of Respondent's back (R. 83-84, 93-94). When Brandon pulled Respondent's mid-back bikini string Respondent felt her top come up. Respondent reacted to this by (1) continuing to travel at a speed of 65 mph, and (2) taking both of her hands off of the steering wheel for "a split second" to grab her bikini top. (R.93-94, 96-97) As a result of Respondent Brittany's removal of both of her hands from the steering wheel, her vehicle veered to the right, she grabbed the steering wheel to steer the vehicle back into the lane, and she lost control of her car causing it to leave its lane of travel, then leave the traveled portion of the roadway, violently impact the guardrail to her left, somersault in the air and land upside down on its roof and travel the length of a football field in the opposite lane of travel (R. 94- 98, 139, 228, 229, 231). She did not change her rate of speed, try to pull over, or apply her brake at any time prior to the vehicle coming to a stop. F) The Police Accident Reconstruction The police accident reconstruction report reflects that there was evidence only of tire marks reflecting a sudden change of lanes but no skid marks reflecting the use of brakes found at the scene ofthe accident (R. 223, 224). The prime causative factor of the accident listed on the police reconstruction report was driver distraction (R. 251 ). G) The pulling of the second bikini string was foreseeable Respondent admitted she was aware of decedent's worsening erratic behavior and that he did not consider his acts were anything other than "funny" (R. 75, 78 - 80, 83-87, 89,93-94,129-131). Even Respondent's Appellate counsel conceded in his brief to the Appellate Division, that there is evidence in the Record that conceivably supports the Appellant's argument that the prior conduct of the decedent made the pulling of the Respondent's bikini string a foreseeable act as interpreted by reasonable minds. (Respondent's Brief at p. 3). 6 H) No Evidence of Breast Exposure The basis of the trial court's denial of Plaintiffs CPLR 4404 motion was that Brittany's "sudden and unwanted breast exposure to her male passengers" was a "qualifYing emergency" and thus that the charge was appropriate. (R.l2-13). 2 The Appellate Division affirmed this factual finding. Notably, the record reflects that Respondent testified multiple times that when the second string around her back was untied after her neck string was retied, she felt her top come up and that it was "coming off." (R. 120, 149) She did not testifY that her breasts were ever exposed or that she was topless. She testified instead that despite the magnitude of the vehicular crash, and the fact that she crawled out of the window of the vehicle which came to rest upside down on its roof that she still had her bikini top on after the accident and she simply grabbed the strings and retied it herself (R. 85- 86, 138, 149, 150). ARGUMENT POINT I THE TRIAL COURT ERRED IN ISSUING THE EMERGENCY CHARGE The trial court issued the emergency charge in favor of the Respondent Brittany Lahm based upon the claim that the exposure of her breasts to the male rear seated passengers caused by one of her passengers pulling her bikini top mid-back string was sudden and unexpected and caused her to react by removing both hands from the steering wheel thereby losing control of her vehicle. As set forth by Justice Roman in her dissenting opinion, the facts of this case do "not present a situation envisioned by the emergency doctrine." 2 Over objection the trial court issued the emergency charge in favor of Respondent, Brittany Lahm. (R. 272). The jury returned a verdict in favor of the Appellant. The Appellant filed and served a CPLR 4404 motion to set aside the verdict and the court issued a denial. (R. 381-424, 5-6.1 ). 7 Historically, the emergency doctrine has been applied in vehicle collision cases where a driver may be faced with a sudden and unexpected circumstance requiring quick reaction." See, for example, New York Practice Series, New York Law of Torts - Standards of Care and Its Breaches; §7:15 Standards of Care As Effected by Emergencies and cases cited therein.3 It has historically been limited to cases involving actions that occur outside of a motor vehicle; e.g., motor vehicles crossing over into the oncoming lane of traffic, Kenny v. County of Nassau, 93 A.D.3d 694 (2d Dept. 2012); Rivas v. Metropolitan Suburban Bus Authority, 203 A.D.2d 349 (2d Dept. 1994); a child suddenly darting out from between two parked cars, Ferrer v. Harris, 55 N.Y.2d 285 (1980); an obstruction on the roadway such as a body of a pedestrian who lands in a motorist's lane of travel after being hit by another vehicle, Lonegran v. Alma, 74 A.D.3d 902 (2d Dep't. 2010). Even in those limited circumstances, its continued application has come under scrutiny by this Court. In Caristo v. Sanzone, et al, 96 N.Y.2d 172, 174 (2001) and Lifton v. City of Syracuse, 17 N.Y.3d 492 (2011) this Court noted the erosion of the doctrine due to the evolution from contributory negligence to comparative negligence and found the instruction given to the jury to have been inappropriate. This Court's holdings in Caristo and Lifton are controlling in this action. As set forth in Caris to, and as Justice Roman noted in her dissent, as a threshold issue it is for the Court to determine, "that there is some reasonable view of the evidence supporting the occurrence of a "qualifYing emergency." !d. at 175; citing Rivera v. New York City Transit Authority, 77 NY2d 322, 327 (1991). Once that determination has been made, it is for the jury to "consider whether a defendant was faced with a sudden and unforeseen emergency", not of her own making, and if so, whether, the defendant's actions were reasonable in response thereto. Id. at 175. Here, Judge Garvey erroneously found that it was for the jury to determine whether a "qualifYing emergency" existed. (R. 13). In Caristo, this Court found as a matter of law that there was no reasonable view of the evidence to support a finding that a qualifYing event had occurred where the defendant driver involved in the motor vehicle 3 For example, Ferrer v. Harris, 55 N.Y.2d 285 (1982); Kuci v. Manhattan and Bronx Surface Transit Operating Authority, 219 A.D.2d 486 (1st Dept. 1995); Lopez v. Wook Ko Yong, 96 A.D.2d 724 (2d Dept. 2012); Davis v. Metropolitan Transit Authority, 92 A.DJd 825 (2d Dept. 2012); Ardila v. Cox, 88 A.DJd 829 (2d Dept. 2011); Lizarazo v. Penske Truck Leasing, 74 A.D.3d 756 (2d Dept. 2010). 8 accident had been traveling in worsening road conditions for approximately half an hour prior to encountering a "sheet of ice" on a hill as he proceeded downward traveling 20 to 25 mph, on which he began to slide, and despite pumping his brakes, slid 175 to 200 feet, past a stop sign and into the intersecting roadway. This was so even though he had not previously encountered any ice on the roadway that morning. Id. at 174. The majority's rationale was that based on defendant's "admitted knowledge of the worsening conditions, the presence of ice on the hill can not be deemed a sudden andunexpected emergency." Id. at 175. The Court found that even though the defendant driver had not encountered patches of ice on the roadways prior to "losing control of his vehicle," the temperature was "well below freezing and it had ben snowing, raining and hailing for at least two hours." Thus, according to this Court, there was "no reasonable view of the evidence that would lead to the conclusion that the ice and slippery road conditions ... were sudden and unforeseen." !d. This Court specifically noted that its decision was consistent with its decision in Ferrer v Harris, 55 N.Y.2d 285 (1982). In Ferrer, it had concluded the emergency doctrine charge was appropriate finding that "the qualifYing emergency - a child darting from a sidewalk into street traffic - is simply not analogous to the presence of ice and slippery conditions following at least two hours of inclement weather with temperatures well below freezing." Caristo, supra. at 175. More recently, in Lifton, supra, decided after Judge Garvey issued the emergency doctrine charge to the jury in the present case and after her decision denying Appellant's 4404 motion, Chief Judge Lippman opined that it was error to issue the emergency charge based on facts similar to those presented here, to wit; to a driver familiar with the general area, who was about to tum to the west at a time of day that the sun would be setting and who was "blinded by the sun 'all of a sudden,"' and whose "reaction was to look down and to his right and, when he looked up," he saw Plaintiff, and "although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact." This Court held, it was improper to permit the jury to consider the defendant's action under "an extremely favorable standard" and "because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error." !d. at 496, 498. In both of these cases, this Court's rationale, for finding that the issuance of the emergency charge was improper, like the rationale applied 9 by Justice Roman in her dissent herein, rested on the driver's general knowledge/awareness of the condition identified as the condition that caused the alleged unexpected occurrence constituting the would-be "emergency" (i.e., the setting sun causing the sun glare in Lifton and the worsening weather causing the patch of ice in Caris to) and therefore precluded the doctrine's application. Thus, the confronted occurrences were circumstances that this Court found the defendant driver should have reasonably anticipated given his awareness of the general conditions prevailing and therefore he should have been prepared to deal with them. In other words, the Court found that those occurrences were the potential hazards presented by existing and ongoing conditions that the defendants should have been, but failed to be, aware of. See also, Cascio v. Metz, 305 A.D.2d 354, 356 (2d Dept. 2003); Fuller v. Brady, 242 A.D.2d 522 (2d Dept. 1997), Pincus v. Cohen, 198 A.D.2d 405, 406 (2d Dept. 1993); and Muye v. Luben, 282 A.D.2d 661 (2d Dept. 2001). As a result, this Court found in both Caristo and Lifton it was error to have allowed the emergency doctrine to be charged. The circumstances presented in the case at bar are closely analogous to those found in Lifton and Caristo and the analysis conducted by this Court in those cases is equally applicable herein. Just like the Court found that the sun setting in Lifton, and the worsening weather prevailing in Caristo were conditions the Defendant was generally aware of, here, the ongoing inappropriate, dangerous and distracting behavior of the decedent was the condition that Respondent was generally aware of. In fact, as noted by Justice Roman, Respondent took deliberate action in response to the decedent's misconduct. She engaged the window locks, yelled at the decedent and called him a name during the 15-20 minutes that the worsening condition continued to take place prior to the accident. And, like the sun glare was the occurrence in Lifton, and the icy patch was the occurrence in Caristo, the untying of the second bikini string at Respondent's mid back was the occurrence in the case at bar. And, just as the sun glare in Lifton arose from the setting sun and resulted in the driver's momentary "blindness" (causing the defendant driver to react by looking away while he continued driving and thus was unable to avoid hitting the plaintiff when he looked back), and just as the icy patch in Caristo arose from the prevailing weather conditions (resulting in defendant's vehicle sliding 175 feet toward the intersection causing the defendant to react by pumping his brakes and running the stop sign and entering the intersection), the untying of Respondent's mid-back bikini string arose from decedent's ongoing 10 inappropriate, dangerous and distracting behavior that was increasingly aimed at getting the Appellant's attention and resulted in Respondent's top loosening and coming up, causing her to react by removing both of her hands from the steering wheel and losing control of her vehicle. In Lifton the Court found that the occurrence of the sun glare was foreseeable because it is known that the sun sets in the west. In Caristo, the Court found that the occurrence of the icy patch was foreseeable because of the ongoing worsening weather conditions. In the case at bar, the occurrence of decedent pulling Respondent's mid-back bikini string was foreseeable because of the admittedly known ongoing distracting behavior of the decedent directed toward the Plaintiff, including the untying of the first bikini string. Such an analogy cannot be made to the facts in Johnson v. Ingalls, 95 A.D.3d 139 (3d Dept. 2012) where the defendant was essentially unaware of any of conditions that preceded the occurrence of the Plaintiff thrusting half of her body into his vehicle flailing her arms and creating chaos and causing him to react by accelerating slightly to get away. The driver in Lifton was not entitled to the benefit of the emergency doctrine jury charge; nor was the driver in Caristo. Respondent similarly should not have been entitled to the benefit of the emergency doctrine. As noted by Justice Roman in her dissent, the circumstances herein do not "present a situation envisioned by the emergency doctrine" because the "situation was neither sudden nor unexpected and, in fact, could have been reasonably anticipated in light of the surrounding circumstances" based upon Brittany's awareness of the decedent's "inappropriate, distracting, and dangerous behavior" and the fact that she "chose to maintain her speed at 65 mph rather than take appropriate measures to ensure the safe operation of the vehicle." As also noted by Justice Roman, Respondent had time for "thought, deliberation or consideration," in light of decedent's continuing and worsening behavior (Caristo, supra at 174)." In fact, Justice Roman correctly concluded that Respondent had time to "reflect on the ongoing situation, which occurred over a span of approximately 15-20 minutes" and that she "had an opportunity to weigh alterative courses of conduct over that period of time" and in fact "took corrective measures in response to decedent's actions, including yelling at him to get back inside the vehicle, using her electronic controls to roll up and lock Brandon's window, and admonishing him to stop acting like an "idiot" and to "stop sticking his feet in her face." 11 Indeed, as was the case in Carson v. DeLorenzo, 238 A.D.2d 790, 791 (3d Dept. 1997) "the chain of events leading up to the collision was set in motion by defendant's operation of her vehicle at a speed that was excessive for the prevailing conditions." The chain of events leading up to the final act committed by decedent was set in motion by Respondent's continued operation of her vehicle at 65 mph, on a summer Saturday evening, with "cars definitely on the road" (R. 75,78, 134, 348) despite her full knowledge that decedent's ongoing inappropriate, dangerous and distracting behavior continued to be directed toward her, and that he thought it was funny and that she was, in her own words "pissed". Thus, as Justice Roman found, under the circumstances of this case, decedent's ultimate commitment of an act that would cause Respondent to lose control of her vehicle "cannot be deemed sudden or unexpected" based upon established law. See, Lifton, supra, Caristo, supra and Smith v. Perfectaire Co., 270 A.D.2d 410, (2d Dept. 2000); See, also Kryznski v. Chase, 707 F. Supp.2d 318, 325 (EDNY 2009) denying the application of the emergency doctrine, !d. at 325 citing Muye v. Liben, supra, (inside quotations omitted) (quoting Pincus v. Cohen, 198 A.D.2d 405 (2d Dept. 1993) wherein the defendant driver argued he was distracted by the movements of a third vehicle that he "believed might cross into his lane, he took his eyes off the road" and when he looked back the collision with Plaintiffs vehicle was unavoidable. Id. at 325. The Court found the emergency doctrine inapplicable). Jd. at 326; see also Kizis v. Nehring, 27 A.D.3d 1106 ( 41h Dept. 2006), wherein the Court not only found that the defendant's "self-described emergency, i.e., the presence of what appeared to be a bird 'flying or running' toward Nehring's vehicle," was not evidence that defendant was confronted by a "qualifying emergency" as a threshold matter, it found it could not justify or excuse her reaction of "swerving into the opposing lane of travel and colliding head-on with an oncoming vehicle" or "remaining for 'seconds' in the opposing lane of travel while looking in her rear-view mirror, whereupon the head-on collision occurred." !d. at 1107-11 08; citing Caristo, supra, Rivera supra, Carson v. Delorenzo, supra, Anderson v. Krauss, 204 A.D.2d 1074 (41h Dept. 1994). Based upon the circumstances of this case, out of which the culminating act of the second pulling of the Respondent's bikini string arose, and Respondent's general awareness of decedent's conduct that preceded that act, and which interfered with her ability to operate her vehicle in a reasonably safe manner for the prevailing conditions, and as correctly found by Justice Roman, "there was no qualifying event justifying the issuance of 12 an instruction on the emergency doctrine." The trial court's issuance of the emergency doctrine charge to the jury was in contravention of established law. Its' application to the facts of this case far exceed the bounds previously prescribed by this Court. It was thus reversible error for the Court below to issue the emergency doctrine and for the Appellate Division to affirm that determination. Reversal by this Court is warranted and this matter should be remitted to the Supreme Court for a new trial. POINT II THE COURT'S ISSUANCE OF THE EMERGENCY CHARGE WAS NOT HARMLESS ERROR The trial court's decision to issue the emergency charge to the jury, and its affirmance by the Appellate Division, was not harmless error. The issuance of the charge permitted the jury to consider the Respondent's actions under an extremely favorable standard. See, Lifton, supra at 498. The trial Court's determination that there existed some "reasonable" view of the evidence that could show that Respondent was confronted with a sudden and unforeseen circumstance not of her own making, and that it "was properly left to the jury to decide whether a qualifYing emergency existed" was based upon an erroneous factual conclusion and an erroneous legal premise. Upon review, reversal of such a determination is appropriate where "the application of the instruction to the facts presented could have affected the outcome of the trial." Id. at 498, citing Garricks v. City of New York, 1 N.Y.3d 22, 27 (2003). Here, not only did the trial court erroneously base its ruling that Respondent was confronted with a sudden and unforeseen event upon a factual finding not present in the record (exposure of her breasts with three males sitting in the back seat of her car), facts which the majority of the Appellate Division also based its decision upon, the trial court also erroneously found it was for the jury to decide whether a "qualifYing emergency" existed. Based upon the foregoing, and in light of the fact that Respondent admittedly violated VTL §1226 by taking both hands offthe steering wheel while driving 65 miles per hour on a highway, the application of the emergency charge to the facts in the record affected the outcome of the trial and therefore the error in issuing the emergency charge was not harmless and a reversal by this Court is warranted. 13 POINT III THE JURY'S VERDICT IS AGAINST THE SUBSTANTIAL WEIGHT OF THE EVIDENCE Following the trial, the appellant submitted a motion to set aside the verdict as being against the substantial weight of the evidence pursuant to CPLR 4404(a) (R. 381-414). The Court's denial of that motion was in error. Where no fair interpretation of the evidence supports a finding that the defendant is completely free of negligence, the court is free to exercise its discretion and to set aside a verdict, concluding the jury's findings of no negligence was improper. See, Barbieri v. Vokun, 72 A.D.3d 853 (2d Dept. 2010). As set forth herein, based upon the circumstances of this case, no rational jury could conclude that Respondent Lahm was not even one percent negligent. The court erred in denying Appellant's motion to set aside the verdict as against the weight of the evidence because "it could not have been reached upon any fair interpretation of the evidence." Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746 (1995); citing Moffatt v. Moffatt, 86 AD2d 864 (2d Dept. 1982) affd., 62 N.Y.2d 875 (1984); see also Delgado v. Board of Education, 65 AD2d 547 (2d Dept. 1978) affd. no opn., 48 NY2d 643 (1979). The court's failure to set aside the verdict was in error and the Court's decision should be reversed. CONCLUSION Based upon the foregoing, it is respectfully submitted that a reversal of the Appellate Division's affirmance ofthe trial court's decision and order dated June 14, 2011, and the subsequent judgment dated September 1, 2011, is warranted and that upon reversal the jury verdict in this matter be set aside and the case be remanded for a new trial on the merits. In addition to the foregoing and pursuant to 500.11(f) ofthe Rules of the Court of Appeals, the Appellant hereby specifically incorporates and reserves the arguments contained within his briefs submitted to the Appellate Division, but which are not highlighted herein, and respectfully requests that this Court consider them in its review. cc: Matthew Zizzimima, Esq. 14 STATE OF NEW YORK COUNTY OF QUEENS AFFIDAVIT OF SERVICE ) ) ) Ronald Knowings, being duly sworn, deposes and says that deponent is not a party to the action, is over 18 years of age, and resides at 1387 Troy Avenue, Brooklyn, NY 11203. That on the 21 51 day of August, 2014 deponent personally served the within Letter Supporting Appellant's Position on the Merits upon designated counsel for the parties indicated herein at the addresses provided below by leaving 3 true copies ofthe same. Names, addresses, and phone numbers of attorneys served, together with the names of represented parties: HANNUM FERETIC PRENDERGAST & MERLINO LLC Attorneys for Defendants-Respondents One Exchange Plaza 55 Broadway, Suite 202 New York, New York 10006 (212) 530-3900 mzizzamia@hfpmlaw .com Sworn to before me this 21st day of August, 2014 Notary Public Original 8588
