Studer v. Whitsell , 755 N.Y.S.2d 675 ( 2003 )

Appeal from an order of Supreme Court, Steuben County (Bradstreet, J.), entered October 9, 2001, which denied defendants’ motion seeking summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed.

Memorandum: Supreme Court erred in denying defendants’ motion seeking summary judgment dismissing the amended complaint. Plaintiffs commenced this action seeking damages for injuries sustained by Heath W. Studer (plaintiff) when the vehicle he was operating crossed into the opposite lane on a dirt road within the jurisdiction of defendant Town of West Union (Town) and struck a Town pickup truck operated by George A. Whitsell (defendant), Highway Superintendent for the Town. Plaintiff has no memory of the collision but does not dispute the fact that his vehicle crossed into the opposite lane and struck the truck operated by defendant. Defendants established that the yellow emergency lights on the Town’s truck were operating, that defendant observed plaintiffs vehicle cross into his lane of traffic and that he then drove the truck as far as possible to the right side of the road and slowed to a stop. Defendants therefore established as a matter of law that they were not negligent inasmuch as they established that the accident “was caused by plaintiffs crossing over into defendant [s’] lane of [traffic]” and striking the truck (Gouchie v Gill, 198 AD2d 862, 862), despite the evasive actions taken by defendant. Plaintiffs speculation that the collision may have been avoided if defendant had sounded his horn is insufficient to raise an issue of fact with respect to defendant’s fault (see Whitfield v Toense, 273 AD2d 877, 877-878). In light of our decision, we do not address defendants’ remaining contention. Present — Wisner, J.P., Hurlbutt, Scudder, Gorski and Hayes, JJ.