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Koch v. Levenson

225 A.D.2d 592 Court N.Y. App. Div. Decision date 1996-03-11 English

Contents

Majority

p. 592
Michael Koch et al., Plaintiffs, v Sheldon Levenson, Defendant and Third-Party Plaintiff, et al., Defendants. County of Nassau, Third-Party Defendant. (Action No. 1.) Carol Erstling et al., Appellants, v Sheldon Levenson, Respondent, County of Nassau, Appellant, et al., Defendants. (Action No. 2.) (And Two Related Actions.)
[638 NYS2d 785]

Contrary to the appellants’ contention, the Supreme Court properly awarded summary judgment to Sheldon Levenson dismissing all complaints, third-party complaints, and cross claims insofar as asserted against him. Levenson was driving his automobile north along Peninsula Boulevard in Rockville Center when a driver in the southbound lane lost control of his vehicle, which crossed the center median, striking the Levenson vehicle head on.

It is axiomatic that a driver is not required to anticipate

p. 593
that an automobile traveling in the opposite direction will cross over into oncoming traffic (see, Goff v Goudreau, 222 AD2d 650 ; Mangano v New York City Hous. Auth., 218 AD2d 787 ). 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 AD2d 354 ; Glick v City of New York, 191 AD2d 677 , 678). Here, Levenson was faced with an instantaneous cross-over emergency when the offending vehicle suddenly shot into the oncoming lane of traffic, leaving him with virtually no time to react (see, Williams v Econ, 221 AD2d 429 ; Mangano v New York City Hous. Auth., supra). We find no merit to the appellant’s contention that Levenson could have taken evasive action because a passenger in his vehicle warned him to "watch out” approximately two or three seconds before the offending vehicle crossed the median. This argument disregards the principle that a driver need not anticipate such a situation (see, Mangano v New York City Hous. Auth., supra; Gouchie v Gill, 198 AD2d 862 ). Accordingly, the Supreme Court correctly determined that any possible negligence on Levenson’s part did not contribute to the accident (see, Moller v Lieber, 156 AD2d 434 ). Santucci, J. P., Krausman, Goldstein and Florio, JJ., concur.

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