ALEXIOU v. ALES (2001)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated July 10, 2000, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

In support of their motion for summary judgment dismissing the complaint, the defendants presented evidence that the plaintiffs' automobile suddenly swerved to the right across four lanes of traffic on the Whitestone Expressway, crashed into the concrete barrier on the right side of the road, ricocheted to the left, and struck their truck.   Immediately before the impact, the defendant driver moved to the far left lane and began to slow down, but he could not avoid colliding with the plaintiffs' out-of-control automobile.   The plaintiff driver had no recollection of the collision, and testified at her deposition that, “I was driving, I got hit.   That's all I remember after that”.   She also testified that there were no other vehicles in the immediate vicinity.   The involvement of the defendant driver in the accident “was the result of an emergency situation not of his making, and any error in judgment on his part does not constitute negligence” (DiGiorgio v. Sil Serv. Corp., 243 A.D.2d 535, 536, 665 N.Y.S.2d 288).   Accordingly, the defendants are entitled to summary judgment dismissing the complaint (see, Lazar v. Fea Leasing, 264 A.D.2d 818, 695 N.Y.S.2d 592;  Packer v. Mirasola, 256 A.D.2d 394, 681 N.Y.S.2d 559).

The plaintiffs' remaining contentions are without merit.