Opinion
June 15, 1987
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the interlocutory judgment is reversed insofar as appealed from, on the law, with costs, and the complaints in action Nos. 1 and 4 are dismissed as against Sol Kohl.
Under the facts of this case, Sol Kohl was not negligent as a matter of law and the court should have granted judgment in his favor. Furthermore, it was reversible error for the court not to charge, as requested, that Kohl was not required to anticipate that an automobile going in the opposite direction would cross the median strip of the highway and enter the flow of traffic in the opposing direction (see, Meyer v Whisnant, 307 N.Y. 369, 371, rearg denied 307 N.Y. 911; Campbell v Towber, 26 A.D.2d 628, 629, affd 19 N.Y.2d 844; Breckir v Lewis, 21 A.D.2d 546, 549, affd sub nom. Breckir v Pleibel, 15 N.Y.2d 1027; Wolfson v Darnell, 15 A.D.2d 516, 517, mod on other grounds 12 N.Y.2d 819; Gooch v Shapiro, 7 A.D.2d 307, 309, affd 8 N.Y.2d 1088). When the Plymouth Duster driven by Ruth Ann Martin and owned by William Martin entered the north-bound lanes of traffic (the direction in which Kohl was traveling), Kohl was confronted with an emergency not of his own making and without an opportunity for deliberation. Under the emergency circumstances present, Kohl was not obligated to exercise his best judgment and an error of judgment on his part is not to be considered negligence (see, Rowlands v Parks, 2 N.Y.2d 64, 67; Meyer v Whisnant, supra, at 371; Wolfson v Darnell, supra, at 517).
In light of our disposition of this case, we do not consider Kohl's allegations concerning errors made at the trial and considering the remainder of the trial court's charge to the jury. Weinstein, J.P., Rubin, Kooper and Sullivan, JJ., concur.