Filed Date： 12/23/1994
Status： Precedential
Modified Date： 10/31/2024
—Order insofar as appealed from unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting the motion of defendant Douglas W. Boyes for summary judgment dismissing the complaint of plaintiff, Penelope Boyes. Douglas Boyes was driving a Ford van southbound on Route 219 in the Town of Ashford when a northbound vehicle, driven by Jason DeLellis, spun out of control on a curve and slid into the southbound lane. Douglas Boyes braked and tried to steer out of the way but was unable to avoid a collision. Douglas Boyes argued that he was not negligent, citing this Court’s decision in Gouchie v Gill (198 AD2d 862). In that case, we held that liability cannot be predicated upon the failure of a driver, not otherwise negligent, to avert a collision with a vehicle careening across the highway directly into his path. We further held that, ”[o]nce a defendant establishes that a head-on collision was caused by plaintiff’s crossing over into defendant’s lane of travel, defendant has established 'a complete defense to plaintiff’s action.’ * * * It then becomes 'incumbent upon plaintiff to submit evidence in admissible form to create an issue of fact as to [defendant’s] negligence contributing to the happening of the accident’ ” (Gouchie v Gill, supra, at 862-863, quoting Eisenbach v Rogers, 158 AD2d 792, 793, lv denied 79 NY2d 752; see also, Morowitz v Naughton, 150 AD2d 536, 537).
Here, the evidence submitted by plaintiff, which included the affidavit of an accident reconstruction consultant, raised issues of fact whether Douglas Boyes was negligent in not