Tenenbaum v. Martin

• Decision Date: 15 June 1987
• Docket Number: No. 4,No. 3,No. 1,No. 2,1,2,3,4
• Citation: 131 A.D.2d 660,516 N.Y.S.2d 741
• Parties: Jean TENENBAUM, et al., Plaintiffs-Respondents, v. William MARTIN, et al., Defendants-Respondents; Sol Kohl, Appellant. (Action). Mimi KOHL, et al., Plaintiffs, v. William MARTIN, etc., Defendant-Respondent. (Action). Donna OLSON, etc., Plaintiff-Respondent, v. William MARTIN, etc., Defendant-Respondent. (Action). Donna OLSON, etc., Plaintiff-Respondent, v. Sol KOHL, Defendant Third-Party Plaintiff-Appellant, William Martin, etc., Third-Party Defendant-Respondent. (Action).
• Court: New York Supreme Court — Appellate Division

Page 741

516 N.Y.S.2d 741

131 A.D.2d 660

Jean TENENBAUM, et al., Plaintiffs-Respondents, v. William MARTIN, et al., Defendants-Respondents;

Sol Kohl, Appellant. (Action No. 1).

Mimi KOHL, et al., Plaintiffs, v. William MARTIN, etc., Defendant-Respondent. (Action No. 2).

Donna OLSON, etc., Plaintiff-Respondent, v. William MARTIN, etc., Defendant-Respondent. (Action No. 3).

Donna OLSON, etc., Plaintiff-Respondent, v. Sol KOHL, Defendant Third-Party Plaintiff-Appellant, William Martin, etc., Third-Party Defendant-Respondent.

(Action No. 4).

Supreme Court, Appellate Division Second Department.

June 15, 1987.

Pizzitola & DiBlasi, P.C., Brooklyn (Vincent A. DiBlasi and Lawrence B. Lame, of counsel), for appellant in Action Nos. 1 and 4).

Lawlor & Caulfield, New York City (Philip Brian Murphy, of counsel), for William Martin, defendant-respondent in Action Nos. 1 and 2, and third-party defendant-respondent in Action No. 4, and for defendant-respondent Donna Olson in Action No. 1.

Farrell & Kalina, Mineola (Vincent D. Farrell and Joseph Fallek, of counsel), for plaintiff-respondent Donna Olson in Action Nos. 3 and 4.

Before WEINSTEIN, J.P., and RUBIN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In four consolidated negligence actions to recover damages for personal injuries, etc., Sol Kohl appeals from so much of an interlocutory judgment of the Supreme Court, Kings County (Dowd, J.), dated December 9, 1985, as, upon a jury verdict, found him to have proximately caused the accident and found him to be 60% at fault in the happening of the accident.

ORDERED that the interlocutory judgment is reversed insofar as appealed from, on the law, with costs, and the complaints in Action Nos. 1 and 4 are dismissed as against Sol Kohl.

Under the facts of this case, Sol Kohl was not negligent as a matter of law and the court should have granted judgment in his favor. Furthermore, it was reversible error for the court not to charge, as requested, that Kohl was not required to anticipate that an automobile going in the opposite direction would cross the median strip of the highway and enter the flow of traffic in the opposing direction (see, Meyer v. Whisnant, 307 N.Y. 369, 371, 121 N.E.2d 372, rearg. denied 307 N.Y. 911, 123 N.E.2d 566; Campbell v. Towber, 26 A.D.2d 628, 629, 272 N.Y.S.2d 643, affd. 19 N.Y.2d 844, 280 N.Y.S.2d 408, 227 N.E.2d 321; Breckir v. Lewis, 21 A.D.2d 546, 549, 251 N.Y.S.2d 77, affd. sub nom. Breckir v. Pleibel, 15 N.Y.2d 1027, 260 N.Y.S.2d 178, 207 N.E.2d 865; Wolfson v. Darnell, 15 A.D.2d 516, 517, 222 N.Y.S.2d 458, mod. on other grounds 12 N.Y.2d 819, 236 N.Y.S.2d 67, 187 N.E.2d 133; Gooch v. Shapiro, 7 A.D.2d 307, 309, 182 N.Y.S.2d 744, affd. 8 N.Y.2d 1088, 208 N.Y.S.2d 34, 170 N.E.2d 830). When the Plymouth Duster driven by Ruth Ann Martin and owned by William Martin entered the northbound lanes of traffic (the direction in which Kohl was traveling), Kohl was confronted with an emergency not of his own making and without an...