Boyes v. DeLellis

—Order insofar as appealed from unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting the motion of defendant Douglas W. Boyes for summary judgment dismissing the complaint of plaintiff, Penelope Boyes. Douglas Boyes was driving a Ford van southbound on Route 219 in the Town of Ashford when a northbound vehicle, driven by Jason DeLellis, spun out of control on a curve and slid into the southbound lane. Douglas Boyes braked and tried to steer out of the way but was unable to avoid a collision. Douglas Boyes argued that he was not negligent, citing this Court’s decision in Gouchie v Gill (198 AD2d 862). In that case, we held that liability cannot be predicated upon the failure of a driver, not otherwise negligent, to avert a collision with a vehicle careening across the highway directly into his path. We further held that, ”[o]nce 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.’ * * * It then becomes 'incumbent upon plaintiff to submit evidence in admissible form to create an issue of fact as to [defendant’s] negligence contributing to the happening of the accident’ ” (Gouchie v Gill, supra, at 862-863, quoting Eisenbach v Rogers, 158 AD2d 792, 793, lv denied 79 NY2d 752; see also, Morowitz v Naughton, 150 AD2d 536, 537). Here, the evidence submitted by plaintiff, which included the affidavit of an accident reconstruction consultant, raised issues of fact whether Douglas Boyes was negligent in not 932 wearing his corrective lenses or in driving too fast for the road conditions, and whether that negligence contributed to Douglas Boyes’ inability to avoid the collision (see, Ayotte v Gervasio, 186 AD2d 963, 964, affd 81 NY2d 1062; Gouchie v Gill, supra, at 863). (Appeal from Order of Supreme Court, Erie County, Whelan, J.-Summary Judgment.) Present—Green, J. P., Balio, Wesley, Callahan and Doerr, JJ.