RODRIGUEZ v. Brian Joseph McLaughlin, et al., Appellants.

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

David RODRIGUEZ, et al., Respondents, v. Sylvia SCHWARTZ, Defendant, Brian Joseph McLaughlin, et al., Appellants.

Decided: January 25, 1999

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, FRED T. SANTUCCI and MYRIAM J. ALTMAN, JJ. Murphy & Higgins, LLP, New York, N.Y. (Anthony L. Raucci of counsel), for appellants. Held, Held & Held, Brooklyn, N.Y. (Scott H. Goldstein of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Brian Joseph McLaughlin and Frank Peter McLaughlin appeal from an order of the Supreme Court, Kings County (Barron, J.), dated May 14, 1998, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them and the cross claim against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint insofar as asserted against the appellants and the cross claim are dismissed, and the action against the remaining defendant is severed.

 A driver is not required to anticipate that an automobile traveling in the opposite direction will cross over into oncoming traffic (see, Velez v. Diaz, 227 A.D.2d 615, 643 N.Y.S.2d 614;  Greifer v. Schneider, 215 A.D.2d 354, 626 N.Y.S.2d 218).  “[A] cross-over scenario presents an emergency situation and the actions of a driver presented with such a situation must be judged in that context” (Greifer v. Schneider, supra, at 356, 626 N.Y.S.2d 218;  Fermin v. Graziosi, 240 A.D.2d 365, 658 N.Y.S.2d 404;  Glick v. City of New York, 191 A.D.2d 677, 595 N.Y.S.2d 560;  see also, PJI 2:14).   In this case, it is undisputed that the vehicle operated by the defendant Sylvia Schwartz suddenly attempted to make a U-turn across and into the opposite lane of traffic, and that the appellant Brian Joseph McLaughlin, who was driving a vehicle owned by the appellant Frank McLaughlin, had only about “a second” to react to the Schwartz vehicle coming into his lane of traffic.   The Schwartz vehicle collided with the McLaughlin vehicle, causing it to collide with the vehicle operated by the plaintiff David Rodriguez.   Under these circumstances, any possible negligence on the part of Brian Joseph McLaughlin was not a proximate cause of the accident (see, Velez v. Diaz, supra).

MEMORANDUM BY THE COURT.

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