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

Janice L. BENTLEY, Plaintiff, v. Jonathan A. MOORE, Defendant.  (Action No. 1).

Xavianca BALL, etc., Plaintiff, v. Jonathan A. MOORE, Defendant Third-Party Plaintiff;

Janice Bentley, Third-Party Defendant.  (Action No. 2). Jonathan A. MOORE, Appellant, v. Janice BENTLEY, Respondent, Volvo Finance of North America, Inc., Defendant Fourth-Party Plaintiff-Respondent; David Neuwirth, Third-Party Defendant-Respondent.  (Action No. 3). (And a Third-Party Action.)

Decided: June 29, 1998

Before PIZZUTO, J.P., and SANTUCCI, ALTMAN and LUCIANO, JJ. Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick, Cheryl F. Korman, and Catherine A. Reardon, of counsel), and Giorgio & dePoto, Syosset (Robert M. dePoto, of counsel), for appellant (separate briefs filed). Pliskin, Rubano & Baum, Flushing (Charles F. Rubano, of counsel), for defendant fourth-party plaintiff-respondent. Ted M. Tobias, Melville (Leslie McHugh, of counsel), for fourth-party defendant-respondent.

In three related actions to recover damages for personal injuries arising out of a multi-vehicle accident, the plaintiff Jonathan A. Moore in Action No. 3 appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), entered May 30, 1997, which granted the motion of the defendant Volvo Finance of North America, Inc., for summary judgment dismissing the complaint in Action No. 3 and all cross claims insofar as asserted against it and, in effect, granted the motion of the fourth-party defendant David Neuwirth for summary judgment dismissing the complaint in Action No. 3 and the fourth-party complaint.

ORDERED that the order is affirmed, with one bill of costs.

Jonathan A. Moore was driving his automobile northbound on Guinea Woods Road. Janice L. Bentley was driving southbound in a Volvo registered to Volvo Finance of North America, Inc. (hereinafter Volvo).   Moore's vehicle crossed over into the southbound lane and a collision occurred.   Moore told the police that he did not know how the accident occurred and, in his deposition, he testified that he lost consciousness prior to the collision.   Bentley testified that she had her foot on the brake and was stopped at a traffic light.

 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, Velez v. Diaz, 227 A.D.2d 615, 643 N.Y.S.2d 614;  Koch v. Levenson, 225 A.D.2d 592, 638 N.Y.S.2d 785;  Greifer v. Schneider, 215 A.D.2d 354, 626 N.Y.S.2d 218;  Tenenbaum v. Martin, 131 A.D.2d 660, 516 N.Y.S.2d 741).   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, Koch v. Levenson, supra;  Mangano v. New York City Hous. Auth., 218 A.D.2d 787, 631 N.Y.S.2d 54;  Greifer v. Schneider, supra;  Glick v. City of New York, 191 A.D.2d 677, 595 N.Y.S.2d 560).

 Here, it was undisputed that Moore crossed over into the southbound lane.   As Moore could not remember what happened and the police report was inadmissible as to whether Bentley's vehicle was in motion, no evidence was presented in admissible form to refute Bentley's testimony that her vehicle was stopped.   In any event, even if Bentley's vehicle was in motion, since the collision occurred within five seconds from the time she first saw Moore's vehicle, Bentley was not obligated to exercise her best judgment and any error in her judgment was not sufficient to constitute negligence (see, Stevens v. Kirby, 86 A.D.2d 391, 450 N.Y.S.2d 607;  Matter of Eagle Ins. Co. v. Olephant, 81 A.D.2d 886, 439 N.Y.S.2d 159;  Greifer v. Schneider, supra).

Moore's remaining contentions are without merit.


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