# Pawlukiewicz v. Boisson

> Appellate Division of the Supreme Court of the State of New York · August 28, 2000 · 275 A.D.2d 446

URL: https://www.frixlaw.com/law-library/cases/6055827

## Case

- **Full name:** James Pawlukiewicz v. Marie N. Boisson, and Kent S. Rydberg, (And a Related Action.)
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** August 28, 2000
- **Citations:** 275 A.D.2d 446; 712 N.Y.S.2d 634; 2000 N.Y. App. Div. LEXIS 8910
- **Precedential status:** Published
- **Opinion:** Dissent by Santucci
- **Judges:** Santucci
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Santucci, J.,
dissents and votes to reverse the order appealed from and grant the appellant’s motion for summary judgment with the following memorandum: I dissent. In my opinion the record does not demonstrate any material issue of fact with respect to the alleged negligence of the appellant, Kent S. Rydberg.
This action arose out of a three-car accident which occurred on County Road 39 in Southampton. The plaintiff was a passenger in the vehicle operated by the defendant Patrick G. Taylor. The vehicle operated by Taylor crossed over from its westbound lane of travel into the oncoming eastbound lane and struck the vehicle operated by the defendant Ingver A. Nelson head-on. As a result of the impact, the plaintiff was ejected from the Taylor vehicle and landed on the roadway directly in the path of Rydberg’s vehicle, which was traveling in the eastbound lane behind the Nelson vehicle. At the time of the accident the roadway was covered with “black ice”.
It is clear that Rydberg was faced with an emergency situation when the two vehicles collided directly in front of him and the plaintiffs body was ejected into his path (see, Greifer v Schneider, 215 AD2d 354, 356 ; Fermin v Graziosi, 240 AD2d 365 ; Glick v City of New York, 191 AD2d 677 ). In addition, Rydberg testified that he was operating his vehicle at only 15 miles per hour while constantly remaining three car lengths behind defendant Nelson’s vehicle. After the impact between the Taylor and Nelson vehicles, Rydberg “maintained my position in my lane” and drove straight through the space that opened up between the two vehicles. He further testified that “a second” elapsed between the time he observed the two vehicles collide in front of him and the time he allegedly passed over the plaintiffs body lying in the roadway.
Under these circumstances, Rydberg was faced with an instantaneous emergency situation, not of his own making, and in which he had only an instant to react. Accordingly, there is no basis to find him at fault for the plaintiffs injuries (see, Williams v Econ, 221 AD2d 429 ). Mere speculation that Rydberg may have failed to take some unspecified accident-avoiding measures or that he contributed to the occurrence of the accident in some other fashion is insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562 ; Bavaro v Martel, 197 AD2d 813 ; Roman v Vargas, 182 AD2d 543 ). Moreover, a driver is not required to exercise his best judgment in response to an emergency and any error in judgment is not sufficient to constitute negligence (see, Ferrer v Harris, 55 NY2d 285 ).
*449 Therefore, Rydberg’s motion for summary judgment dismissing the complaint insofar as asserted against him should have been granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6055827. Public record. Not legal advice.