GUNACAR v. Todd A. Wowak, et al., defendants-respondents.

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Supreme Court, Appellate Division, Second Department, New York.

Gurdogan GUNACAR, et al., plaintiffs-respondents, v. John J. MANTIONE, appellant, Todd A. Wowak, et al., defendants-respondents.

Decided: September 27, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and SANDRA J. FEUERSTEIN, JJ. Ronan, McDonnell & Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellant. Capetola & Doddato, Williston Park, N.Y. (Steven Shulman of counsel), for plaintiffs-respondents.

In an action to recover damages for personal injuries, etc., the defendant John J. Mantione appeals from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated October 21, 1998, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint and all cross claims are dismissed insofar as asserted against the appellant.

 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 (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, and the actions of the driver presented with such a situation must be judged in that context (see, Greifer v. Schneider, 215 A.D.2d 354, 626 N.Y.S.2d 218;  Glick v. City of New York, 191 A.D.2d 677, 678, 595 N.Y.S.2d 560).   In this case, the appellant was presented with an instantaneous emergency when the vehicle operated by the defendant Todd A. Wowak suddenly crossed over into the oncoming lane of traffic, leaving him with virtually no time to react (see, Mangano v. New York City Hous. Auth., 218 A.D.2d 787, 631 N.Y.S.2d 54).   Under these circumstances, the appellant's motion for summary judgment should have been granted (see, Greifer v. Schneider, supra).

The plaintiffs' remaining contentions are without merit.


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