Koch v. Levenson

225 A.D.2d 592, 638 N.Y.2d 785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1996
• Status: Published

Opinion

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 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.