FERMIN v. GRAZIOSI (1997)

In an action to recover damages for personal injuries, etc., the plaintiff Ayle Fermin appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated June 10, 1996, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On September 8, 1992, while driving northbound on Mineola Avenue in Roslyn Heights, Nassau County, the appellant lost control of his car and crossed over into oncoming traffic.   Immediately thereafter, the appellant's car was struck by the defendant's vehicle, which was being driven southbound on Mineola Avenue.   The court correctly determined that the defendant was entitled to summary judgment.

 The defendant, who was not required to anticipate that the appellant's vehicle would cross over into oncoming traffic, was presented with an emergency situation and his actions must be judged in that context (see, Greifer v. Schneider, 215 A.D.2d 354, 356, 626 N.Y.S.2d 218;  Glick v. City of New York, 191 A.D.2d 677, 678, 595 N.Y.S.2d 560).   Under the circumstances, the defendant had “virtually no time to react” and “no opportunity to avoid” the appellant's car (see, Greifer v. Schneider, supra, at 356, 626 N.Y.S.2d 218).

Similarly, there is no merit to the appellant's contention that the defendant could have avoided the accident by swerving his vehicle to the left.   Under the emergency circumstances presented, the defendant “was not obligated to exercise his best judgment and any error in his judgment was not sufficient to constitute negligence” (Greifer v. Schneider, supra, at 356, 626 N.Y.S.2d 218;  see, Moller v. Lieber, 156 A.D.2d 434, 435, 548 N.Y.S.2d 552).

MEMORANDUM BY THE COURT.