Opinion
December 23, 1994
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Green, J.P., Balio, Wesley, Callahan and Doerr, JJ.
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 A.D.2d 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 A.D.2d 792, 793, lv denied 79 N.Y.2d 752; see also, Morowitz v Naughton, 150 A.D.2d 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 wearing his corrective lenses or in driving too fast for the road conditions, and whether that negligence contributed to Douglas Boyes' inability to avoid the collision (see, Ayotte v Gervasio, 186 A.D.2d 963, 964, affd 81 N.Y.2d 1062; Gouchie v Gill, supra, at 863).