(dissenting). Plaintiffs argument here rests on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. I admit that sunset is a foreseeable event. Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the *499forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can sometimes present an emergency situation (majority op at 498).
In deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the distinction. In Ferrer v Harris (55 NY2d 285 [1982]), the defendant driver was passing a park where he knew that children played, and it was obviously foreseeable that a child would step in front of his car; but the event was sudden and unexpected when it happened, and the driver was therefore entitled to an emergency instruction. In Amaro v City of New York (40 NY2d 30 [1976]), plaintiff was a firefighter who was injured in a firehouse while responding to a fire alarm; we held that the alarm, foreseeable as it was for that plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded the benefit of an emergency charge. In Kuci v Manhattan & Bronx Surface Tr. Operating Auth. (88 NY2d 923, 924 [1996]), the defendant’s employee, a bus driver, was familiar with the intersection where the accident occurred and knew “that cars frequently turned right from the left lane in front of buses in this area.” We nevertheless held that it was error to deny an emergency charge, because the driver’s general awareness that such turns often happen “would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car” (id.).
Caristo v Sanzone (96 NY2d 172 [2001]) appears to be the only case in which we have held an emergency instruction was improperly given. There, the defendant was driving in bad weather — a mixture of snow, frozen rain and hail. The claimed emergency was that he encountered a sheet of ice. We held, five to two, that in view of the driver’s knowledge of the weather conditions “the presence of ice on the hill cannot be deemed a sudden and unexpected emergency” (id. at 175). Caristo thus holds that no one driving through such conditions, while exercising reasonable care, could be surprised to find that the road was icy.
A similar holding is not justified here. The record, read most favorably to Klink, shows that he was driving on a city street, where buildings sometimes do and sometimes do not block the *500sun, and that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction of his travel, the time of day and the time of year so precisely that he expected to find the sun in his eyes when he turned. The emergency instruction was properly given.
Judges Ciparick, Graffeo, Pigott and Jones concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion in which Judge Read concurs.
Order, insofar as appealed from, reversed, etc.