Gouchie v. Gill

Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant Robert F. Cook’s (defendant) motion for summary judgment dismissing plaintiffs’ complaints. A driver in his proper lane of travel is not required to anticipate that a car going in the opposite direction will cross over into that lane (see, Palmer v Palmer, 31 AD2d 876, 877, affd 27 NY2d 945; Gooch v Shapiro, 7 AD2d 307, affd 8 NY2d 1088). The failure of a driver, not otherwise negligent, who encounters such a car, "to avert the consequence[s] of such an emergency can seldom be considered negligent” (Breckir v Lewis, 21 AD2d 546, 549, affd sub nom. Breckir v Pleibel, 15 NY2d 1027, citing Meyer v Whisnant, 307 NY 369). A driver faced with a vehicle careening across the highway directly into his path "is not liable for [his] failure to exercise the best judgment or for any error[s] of judgment on [his] part” (Wolfson v Darnell, 15 AD2d 516, 517, affd in part and dismissed in part 12 NY2d 819). Once a defendant establishes that a head-on collision was caused by plaintiff’s crossing over into defendant’s lane of travel, defendant has established "a complete defense to plaintiff’s action” (Eisenbach v Rogers, 158 AD2d 792, 793, lv denied 79 NY2d 752; see also, Morowitz v Naughton, 150 AD2d 536, 537). It then becomes "incumbent upon plaintiff to submit evidence in admissible form to create an 863 issue of fact as to [defendant’s] negligence contributing to the happening of the accident” (Eisenbach v Rogers, supra, at 793). Defendant’s proof concerning the manner in which the accident occurred was sufficient to establish a complete defense to plaintiffs’ actions. Plaintiffs, on the other hand, failed to raise a triable issue of fact concerning possible negligence of the defendant that might have contributed to the accident. Even considering two statements of defendant, which were not in admissible form (see, Zuckerman v City of New York, 49 NY2d 557, 563), we conclude that plaintiffs offered no evidence to suggest that defendant could have done something to avoid the collision (see, Eisenbach v Rogers, supra, at 793; Morowitz v Naughton, supra, at 537; see also, Viegas v Esposito, 135 AD2d 708, 709, lv denied 72 NY2d 801). (Appeal from Order of Supreme Court, Erie County, Wolfgang, J. — Summary Judgment.) Present — Callahan, J. P., Pine, Balio, Doerr and Boomer, JJ.