Jordan v. Bowen

Order unanimously reversed on the law without costs, motion granted and complaint against defendant Guye P. Kroe dismissed. Memorandum: Guye P. Kroe (defendant) submitted evidence in admissible form establishing that, at the time of 911 the accident, he was operating a forklift truck on a plant road on the grounds of his employer at a low rate of speed in the proper lane of travel when a taxicab in which plaintiff was a passenger entered his lane of travel and collided head-on with the forklift truck. Although defendant observed the cab when it was about 100 feet away, it did not cross over into his lane of travel until the vehicles were about 30 feet apart, and he could do nothing to avoid the collision. In opposition to defendant’s motion for summary judgment, the remaining defendants failed to raise an issue of fact whether defendant was negligent in any way, but rather, only speculated that he might have done something to avoid the accident. That speculation is insufficient to defeat the motion (see, Gouchie v Gill, 198 AD2d 862, 863; Eisenbach v Rogers, 158 AD2d 792, 794, lv dismissed 76 NY2d 983; cf., Boyes v DeLellis, 210 AD2d 931, 931-932). (Appeal from Order of Supreme Court, Niagara County, Joslin, J.—Summary Judgment.) Present—Green, J. P., Lawton, Callahan, Doerr and Boehm, JJ.