Wright v. Morozinis

• Decision Date: 10 October 1995
• Citation: 220 A.D.2d 496,632 N.Y.S.2d 213
• Parties: Tammy J. WRIGHT, Plaintiff-Respondent, v. Alexandra MOROZINIS, et al., etc., Defendants-Respondents, Marilyn S. Riddell a/k/a Marilyn Stevens, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 213

632 N.Y.S.2d 213

220 A.D.2d 496

Tammy J. WRIGHT, Plaintiff-Respondent, v. Alexandra MOROZINIS, et al., etc., Defendants-Respondents Marilyn S. Riddell a/k/a Marilyn Stevens, et al Defendants-Appellants.

Supreme Court, Appellate Division Second Department.

Oct. 10, 1995.

Debra A. DiCicco, Brooklyn (Julie N. Solomon, of counsel), for defendants-appellants.

Before THOMPSON, J.P., and COPERTINO, HART and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants Marilyn S. Riddell a/k/a Marilyn Stevens and Michael Roche appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated December 30, 1993, as denied their cross motion for summary judgment dismissing the complaint and all cross claims against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, the appellants' cross motion for summary judgment is granted, and the complaint and all cross claims are dismissed insofar as asserted against them.

This action arises from two successive automobile collisions on Patchogue-Holbrook Road which occurred when the defendant Paul Morozinis apparently lost control of his automobile, crossed the center dividing lines, hit the automobile driven by the defendant Marilyn Riddell and owned by the defendant Michael Roche, then collided with the automobile driven by the plaintiff Tammy Wright, causing both the Morozinis and Wright automobiles to be propelled toward the vehicle driven by the defendant Francyne Moss. Riddell and Roche moved for summary judgment dismissing the complaint and all cross claims against them. We find that the Supreme Court erred in denying their motion.

It is well established that a driver in Riddell's situation cannot reasonably be expected to anticipate that an automobile will surge across the highway and directly into her path (see, Palmer v. Palmer, 31 A.D.2d 876, 877, 297 N.Y.S.2d 428, affd., 27 N.Y.2d 945, 318 N.Y.S.2d 317, 267 N.E.2d 103; Greifer v. Schneider, 215 A.D.2d 354, 626 N.Y.S.2d 218; Wolfson v. Darnell, 15 A.D.2d 516, 517, 222 N.Y.S.2d 458, affd. in part and dismissed in part, 12 N.Y.2d 819, 236 N.Y.S.2d 67, 187 N.E.2d 133). The failure of a driver not otherwise negligent who encounters such a car to avert the consequence of such an emergency, can seldom be considered negligence (see, Gouchie v. Gill, 198 A.D.2d 862, 605 N.Y.S.2d 709; Breckir v. Lewis, 21 A.D.2d 546, 549, 251 N.Y.S.2d 77, affd., 15 N.Y.2d 1027, 260 N.Y.S.2d 178, 207 N.E.2d 865). Whether Riddell's response was appropriate or not, a driver faced with a vehicle careening across...