Cruz v MTLR Corp.

Cruz v MTLR Corp. 2013 NY Slip Op 07847 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ.
11167 18266/07

[*1]Antonio Carlos Cruz, Plaintiff-Appellant,

v

MTLR Corp., et al., Defendants-Respondents, Jaime Piscil, et al., Defendants.




Kahn Gordon Timko & Rodriques, P.C., New York (Nicholas
I. Timko of counsel), for appellant.
Weiner, Millo, Morgan & Bonanno, LLC, New York (John P.
Bonanno of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered November 5, 2012, which, insofar as appealed from as limited by the briefs, granted the motion of defendants-respondents for summary judgment dismissing the complaint and all cross claims against them, and denied plaintiff's cross motion for partial summary judgment on liability as against defendants-respondents Jerry WWHS Co. and Jose Pagan, unanimously affirmed, without costs.

The court properly found that respondents sustained their burden of demonstrating that the accident was not caused by defendant driver Pagan's negligence, and that he was confronted by an emergency situation not of his making, when the vehicle in which plaintiff was a passenger made a wide right turn into Pagan's lane, opposite the direction of traffic, and collided head-on with Pagan's truck. "A driver in his proper lane is not required to anticipate that an automobile going in the opposite direction will cross over into his lane" (Williams v Simpson, 36 AD3d 507, 508 [1st Dept 2007]).

Plaintiff failed to raise a triable issue of fact as to the emergency nature of the situation confronted by Pagan, when he hit the brakes "seconds" before the collision with the other vehicle, which Pagan testified was "on top" of his truck. "[C]ourts have repeatedly rejected, as a [*2]basis for imposing liability, speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency" (Caban v Vega, 226 AD2d 109, 111 [1st Dept 1996]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK