Boos v Bedrock Materials, Inc.

2005 NYSlipOp 01858

March 14, 2005

Appellate Division, Second Department

As corrected through Wednesday, May 18, 2005

Hala Boos et al., Appellants, v Bedrock Materials, Inc., et al., Respondents.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 17, 2003, which granted the defendants' motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

"It is axiomatic that a driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic" (Koch v Levenson, 225 AD2d 592, 592-593 [1996]). Such a scenario presents an emergency situation, and the actions of the driver faced with such a situation must be judged in that context (see Koch v Levenson, supra). Here, the defendant Salvatore Tedeschi was faced with an instantaneous cross-over emergency, not of his own making, when the offending vehicle suddenly veered into the oncoming lane of traffic, leaving him with no time to react and no opportunity to avoid a collision (see Williams v Econ, 221 AD2d 429 [1995]). Mere speculation that Tedeschi may have failed to take some unspecified accident-avoidance measures or in some other way contributed to the occurrence of the accident is insufficient to defeat a motion for summary judgment (see Williams v Econ, supra). In view of the foregoing, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. Florio, J.P., Santucci, Krausman and Rivera, JJ., concur.