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Tran v. Nowak

245 A.D.2d 1083 Court N.Y. App. Div. Decision date 1997-12-31 English

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p. 1083
Gina M. Tran et al., Individually and as Adminstrators of the Estate of Anne O. Tran, Deceased, Respondents, v Shelly L. Nowak et al., Appellants.
[666 NYS2d 84]

—Order unanimously reversed on the law without costs, motion granted, and complaint and cross claims against defendants Min Xu and Genchuan Xu dismissed. Memorandum: These actions stem from a motor vehicle accident on June 7, 1995 in the Town of Cheektowaga. At the time of the accident, defendant Min Xu was operating an automobile owned by her father, defendant Genchuan Xu. It is uncontroverted that Min Xu was driving at a legal rate of speed in the proper lane of travel when an automobile operated by defendant Shelly L. Nowak approached from the opposite direction, crossed a double yellow line and struck Min Xu’s automobile, causing the death of Anne Oanh Tran, a passenger in Min Xu’s automobile. Nowak was convicted of crossing a solid yellow line of traffic in violation of Vehicle and Traffic Law § 1126 (a). The representatives of Tran’s estate commenced this action against Min Xu, Genchuan Xu, Nowak and other defendants.

Supreme Court erred in denying the motion of Min Xu and Genchuan Xu (defendants) for summary judgment dismissing the complaint and cross claims against them. Once defendants established that the head-on collision was caused by Nowak’s

p. 1084
crossing over into Min Xu’s lane of travel, defendants “established ‘a complete defense to [the] action’ ” (Gouchie v Gill, 198 AD2d 862 ). In opposition to the motion for summary judgment, neither plaintiffs nor the other defendants raised an issue of fact regarding the negligence of Min Xu but, rather, merely speculated that she might have done something to avoid the accident. Such speculation is insufficient to defeat a motion for summary judgment (see, Davis v Pimm, 228 AD2d 885 , 887-888, l v denied 88 NY2d 815 ; Kozak v Hyjek, 221 AD2d 999 ; Gouchie v Gill, supra, at 863 ). In light of our determination, we do not consider defendants’ remaining contention. (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Summary Judgment.) Present—Denman, P. J., Lawton, Wisner, Balio and Boehm, JJ.

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