Opinion
June 23, 1997
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the order is affirmed insofar as appealed from by the plaintiffs; and it is further,
Ordered that the appeal of the defendant Jane McChrie-Robins from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendants Suffolk County Transportation Division and Joseph A. Cannizzaro are awarded one bill of costs payable by the plaintiffs and the defendant Jane McChrie-Robins.
The appeal of the defendant Jane McChrie-Robins from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in favor of the defendants Suffolk County Transportation Division and Joseph A. Cannizzaro ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal of the defendant Jane McChrie-Robins from the order are brought up for review and have been considered on the appeal from the judgment.
The plaintiff Diane Fallacaro was a passenger in a car owned and driven by the defendant Jane McChrie-Robins when the car skidded into oncoming traffic and collided with a bus owned by the defendant Suffolk County Transportation Division and driven by the defendant Joseph A. Cannizzaro.
Given the circumstances of the accident, the Supreme Court properly concluded that issues of fact preclude granting summary judgment in favor of the plaintiffs and against McChrie-Robins ( see, Coury v. Safe Auto Sales, 32 N.Y.2d 162; Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132; Zimmerman v. Spaziante, 143 A.D.2d 745, 746; Vadala v. Carroll, 91 A.D.2d 865, affd 59 N.Y.2d 751; see also, PJI 2:84). The court also correctly concluded that Cannizzaro was presented with an emergency cross-over situation, and that any error in his judgment cannot be deemed negligence ( see, Greifer v. Schneider, 215 A.D.2d 354; Glick v. City of New York, 191 A.D.2d 677). McChrie-Robins cross claim against Cannizzaro and the Suffolk County Transportation Division was, therefore, properly dismissed ( see, Barry v Niagara Frontier Tr. Sys., 35 N.Y.2d 629; Kramme v. Town of Hempstead, 100 A.D.2d 447).
Mangano, P.J., Copertino, Florio and McGinity, JJ., concur.