Serbak v. Ulrich

178 A.D.2d 1012, 578 N.Y.S.2d 768, 1991 N.Y. App. Div. LEXIS 17882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1991
• Status: Published

Opinion

— Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion for summary judgment. The uncontroverted evidence revealed that plaintiff was severely injured when the vehicle he was operating entered an intersection without slowing or stopping and was struck by a vehicle being driven by defendant; that plaintiff failed to obey a stop sign governing his direction of travel; that there was no traffic control device governing defendant’s direction of travel; and that when defendant first observed the headlights of plaintiff’s vehicle and observed that plaintiff did not intend to stop, defendant immediately applied his brakes in an effort to avoid the collision. Such proof was sufficient to demonstrate plaintiff’s negligence and the reasonableness of defendant’s conduct under the emergency circumstances presented (see, Moller v Lieber, 156 AD2d 434; Dubacs v State of New York, 140 AD2d 968; PJI 2:14 [1990 Supp]). Plaintiff’s bare statement that he does not have any recollection of the accident was not sufficient to oppose summary judgment. Plaintiff, even though unable to recall the event, was nevertheless obliged to submit some proof, however weak, upon which a jury could find defendant negligent (see, Smith v Stark, 67 NY2d 693, 695; cf, Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 333-334). (Appeal from Order of Supreme Court, Erie County, Wolfgang, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.