Opinion
August 28, 1995
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
This appeal arises from a three-car accident which occurred on the evening of December 7, 1980, on Knapp Street in Brooklyn, which, at the time, was a four-lane road with two northbound and two southbound lanes divided by a double-yellow line. At the time of the accident, Jeff Friedman was driving a New York City Housing Authority patrol car in the left-northbound lane of Knapp Street on his way to his next routine patrol destination. It was raining and there was a car traveling immediately abreast of Friedman in the right-northbound lane. Traveling in the right-southbound lane was a car operated by Donnanne Carbone which was slowing to make a righthand turn into a parking lot. Also proceeding southbound in the right-southbound lane was a car driven by Thomas Herrera, which was traveling at an excessive rate of speed. The plaintiff was a passenger in Herrera's car.
As Herrera proceeded southbound, he attempted to pass the Carbone car by moving into the left-southbound lane. However, Herrera struck the Carbone car on the left-front fender and ricocheted into the left-northbound lane, immediately hitting Friedman. While Herrera's high rate of speed may have been apparent for several seconds prior to impact, it is undisputed that Herrera did not cross over into Friedman's lane until less than two seconds before impact and that Friedman was traveling at a reasonable rate of speed for the prevailing conditions.
The jury found that Herrera was 50% at fault in the happening of the accident, Friedman and the New York City Housing Authority were 40% at fault, and Carbone was 10% at fault. Thereafter, the trial court granted the motion of Friedman and the Housing Authority for judgment notwithstanding the verdict. We affirm.
It is axiomatic that a driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic (see, Tenenbaum v. Martin, 131 A.D.2d 660). Indeed, a cross-over scenario presents an emergency situation and the actions of a driver presented with such a situation must be judged in that context (see, Glick v. City of New York, 191 A.D.2d 677, 678). We find that Friedman was presented with an instantaneous cross-over emergency with virtually no time to react. Additionally, in light of the fact that a car was traveling immediately abreast of Friedman in the righthand lane and Herrera was approaching from the front-left, Friedman had no opportunity to avoid the oncoming vehicle ( cf., Koster v. Fenton, 84 A.D.2d 783). The plaintiff's contention that Friedman should have taken evasive action and pulled in ahead of, or behind the car to his right as soon as he saw the high rate of speed of the Herrera vehicle, without more, is untenable. It directly contradicts the established law of New York that a driver need not anticipate a vehicle crossing-over into his lane of travel (see, e.g., Meyer v. Whisnant, 307 N.Y. 369, 371; Gouchie v. Gill, 198 A.D.2d 862; Benedetto v. City of New York, 166 A.D.2d 209; Tenenbaum v. Martin, supra; Breckir v. Lewis, 21 A.D.2d 546, 549, affd sub nom. Breckir v. Pleibel, 15 N.Y.2d 1027; Gooch v. Shapiro, 7 A.D.2d 307, 309, affd 8 N.Y.2d 1088). Rosenblatt, J.P., Copertino, Hart and Friedmann, JJ., concur.