Rivera v. New York City Transit Authority

Order, Supreme Court,'New York County (Robert D. Lippmann, J.), entered May 23, 2003, which, to the extent appealed from, denied plaintiffs motion for summary judgment as to liability, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of deeming defendants’ answers to assert the affirmative defense of medical emergency, and otherwise affirmed, without costs.

Defendants’ submissions in opposition to plaintiffs summary judgment motion were sufficient to raise a triable issue as to whether defendant bus driver’s loss of vehicular control was attributable to an unforeseeable medical emergency, and thus warranted denial of the motion (see Thomas v Hulslander, 233 AD2d 567 [1996]). Although defendants have not pleaded the affirmative defense of medical emergency in their answers, in view of the evidence submitted in opposition to plaintiff s motion we deem defendants’ answers amended to assert the defense (see Dampskibsselskabet Torm A/S v P.L. Thomas Paper Co., 26 AD2d 347, 352 [1966]). Concur—Nardelli, J.P., Saxe, Sullivan, Ellerin and Sweeny, JJ.