EICHENWALD v. CHAUDHRY (2005)

In an action to recover damages for personal injuries, the defendants Abdul R. Chaudhry and Notil Cab Corp. appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated April 20, 2004, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellants.

The plaintiff was a passenger in a taxicab operated by the defendant Abdul R. Chaudhry and owned by the defendant Notil Cab Corp. (hereinafter the appellants).   The taxi cab was proceeding in a southbound direction on Flatbush Avenue in Brooklyn when it was struck by a van operated by the defendant Heather S. Quashie, which crossed over a double yellow line in the roadway and into the lane in which Chaudhry was driving.

The plaintiff commenced this action against the drivers of both vehicles and the owner of the taxicab.   After issue was joined, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them.   The Supreme Court denied the motion.   We reverse.

A driver is not required to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic (see Koch v. Levenson, 225 A.D.2d 592, 638 N.Y.S.2d 785;  Goff v. Goudreau, 222 A.D.2d 650, 635 N.Y.S.2d 699).   Indeed, such a scenario presents an emergency situation, which, in this case, was not of Chaudhry's making, and his action must be judged in that context (see Koch v. Levenson, supra ).

The plaintiff contends, however, that there is an issue of fact as to whether the Chaudhry's failure to take evasive action constituted negligence contributing to the accident.   However, speculation that the driver in the opposing lane of traffic could have done something to avoid a vehicle crossing over a double yellow line is insufficient to defeat a motion for summary judgment (see Gadon v. Oliva, 294 A.D.2d 397, 742 N.Y.S.2d 122).

The plaintiff's remaining contention is without merit.