Opinion
November 19, 1993
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Order unanimously reversed on the law with costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant Robert F. Cook's (defendant) motion for summary judgment dismissing plaintiffs' complaints. A driver in his proper lane of travel is not required to anticipate that a car going in the opposite direction will cross over into that lane (see, Palmer v Palmer, 31 A.D.2d 876, 877, affd 27 N.Y.2d 945; Gooch v Shapiro, 7 A.D.2d 307, affd 8 N.Y.2d 1088). The failure of a driver, not otherwise negligent, who encounters such a car, "to avert the consequence[s] of such an emergency can seldom be considered negligent" (Breckir v Lewis, 21 A.D.2d 546, 549, affd sub nom. Breckir v Pleibel, 15 N.Y.2d 1027, citing Meyer v Whisnant, 307 N.Y. 369). A driver faced with a vehicle careening across the highway directly into his path "is not liable for [his] failure to exercise the best judgment or for any error[s] of judgment on [his] part" (Wolfson v Darnell, 15 A.D.2d 516, 517, affd in part and dismissed in part 12 N.Y.2d 819). Once 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" (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). 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" (Eisenbach v Rogers, supra, at 793).
Defendant's proof concerning the manner in which the accident occurred was sufficient to establish a complete defense to plaintiffs' actions. Plaintiffs, on the other hand, failed to raise a triable issue of fact concerning possible negligence of the defendant that might have contributed to the accident. Even considering two statements of defendant, which were not in admissible form (see, Zuckerman v City of New York, 49 N.Y.2d 557, 563), we conclude that plaintiffs offered no evidence to suggest that defendant could have done something to avoid the collision (see, Eisenbach v Rogers, supra, at 793; Morowitz v Naughton, supra, at 537; see also, Viegas v Esposito, 135 A.D.2d 708, 709, lv denied 72 N.Y.2d 801).