Opinion
October 29, 1990
Appeal from the Supreme Court, Nassau County (McCabe, J.).
Ordered that the appeal from the order in action No. 2 is dismissed; and it is further,
Ordered that the orders in action No. 1 and action No. 3 are affirmed insofar as appealed from; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
The appellants' allegations that the respondent George Roth acted unreasonably in the course of conduct he chose when confronted with an emergency situation represents nothing more than a claim that he made an error of judgment, a claim to which, under the circumstances, no liability may attach (see, Rowlands v. Parks, 2 N.Y.2d 64; Meyer v. Whisnant, 307 N.Y. 369; Palmer v Palmer, 31 A.D.2d 876, affd 27 N.Y.2d 945). Also unavailing is the appellants' assertion that a question of fact exists as to whether George Roth was negligent in failing to keep a proper lookout. Assuming the truth of the appellant Joseph Lackner's testimony at an examination before trial, it is pure speculation to assume that the accident would have been avoided had Roth spotted the offending vehicle any earlier than he actually had (see, Rowlands v. Parks, supra; Meyer v. Whisnant, supra; see also, Breckir v. Lewis, 21 A.D.2d 546, affd 15 N.Y.2d 1027). Thus, the Supreme Court did not err in granting the respondents summary judgment dismissing the complaints in actions Nos. 1 and 3 insofar as asserted against them.
The appeal of Joseph and Joan Lackner, the plaintiffs in action No. 2, from the order in action No. 2, must be dismissed, as they are not aggrieved by the order granting summary judgment to George and Susan Roth dismissing the third-party complaint in action No. 2 (see, CPLR 5511; Nunez v Travelers Ins. Co., 139 A.D.2d 712; Schultz v. Alfred, 11 A.D.2d 266, 268). Thompson, J.P., Brown, Kunzeman and Rosenblatt, JJ., concur.