HELD v. McMILLAN

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

Scott E. HELD, appellant, v. Anthony J. McMILLAN, et al., respondents.

Decided: November 27, 2007

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO, and MARK C. DILLON, JJ. Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), for appellant. Anthony D. Perri, New York, N.Y. (Eve Lynn Newman of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated June 28, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

According to the plaintiff's deposition testimony, as he was driving in the right-hand lane of the westbound Belt Parkway, his vehicle was struck from behind by an unidentified vehicle, which caused him to lose control of his vehicle.   The plaintiff also lost consciousness, and the next thing he recalled was waking up in the hospital.

According to the deposition testimony of the defendant driver, Anthony J. McMillan (hereinafter the defendant driver), as he was driving in the left-hand lane of the westbound Belt Parkway, the plaintiff's vehicle suddenly appeared in front of his vehicle, and was perpendicular to his vehicle.   The defendant driver could not stop his vehicle in time to avoid a collision, and the front of his vehicle struck the driver's side of the plaintiff's vehicle.

The defendants submitted evidence sufficient to demonstrate, prima facie, their entitlement to judgment as a matter of law on the ground that the defendant driver was faced with an emergency situation not of his own making.   Accordingly, any alleged failure by the defendant driver to exercise his best judgment was insufficient to constitute negligence (see Lee v. Ratz, 19 A.D.3d 552, 552-553, 798 N.Y.S.2d 80;  Dormena v. Wallace, 282 A.D.2d 425, 425, 723 N.Y.S.2d 72).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.   The plaintiff's assertion that the defendant driver contributed to the accident by driving at an excessive rate of speed is sheer speculation (see Maloney v. Niewender, 27 A.D.3d 426, 427, 812 N.Y.S.2d 585).

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