Jones v Geoghan, 2009 NY Slip Op 02752 (App. Div., 2nd, 2009)
Although the appellants expressly raised a defense based on the emergency doctrine for the first time in their reply papers, we may consider it on appeal. In the first instance, the defense was raised in direct response to the allegation made in the plaintiff's opposition papers that the decedent was struck by a van in motion, rather than thrown into the path of a stopped van (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630; see also Kelsol Diamond Co. v Stuart Lerner, 286 AD2d 586, 587). Moreover, "[a]lthough the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact" (Bello v Transit Auth. of N.Y. City 12 AD3d 58, 60; see Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444), those issues, under the circumstances here, are determinable as a matter of law (see Vitale v Levine, 44 AD3d at 936; Gajjar v Shah, 31 AD3d at 378; Marsch v Catanzaro, 40 AD3d 941, 942; Garcia v Prado, 15 AD3d 347; Huggins v Figueroa, 305 AD2d 460, 462). The appellants' reply papers presented no new facts, but only an issue of law which appears on the face of the record. Thus, the defense based on the emergency doctrine may be considered on this appeal, as that issue was briefed by the parties on appeal (see Hoffman v City of New York, 301 AD2d 573, 574) and could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see generally Dugan v Crown Broadway, LLC, 33 AD3d 656; Hoffman v City of New York, 301 AD2d at 574; Block v Magee, 146 AD2d 730, 732-733). Further, the facts surrounding the events leading up to the accident were known to the plaintiff and, thus, there was no unfair surprise when the defense was raised by the appellants in their reply to the plaintiff's opposition (cf. Vitale v Levine, 44 AD3d at 936; Bello v Transit Auth. of N.Y. City, 12 AD3d at 61).
As someone else noted, "Makes sense, since the raising of the defense is in response to an aff in opp, and not something that had any place in the actual motion. I can dig it."
