Reid v. Hart

We respectfully dissent. In our view the credible proof before Supreme Court on the motion for summary judgment permitted no other reasonable conclusion but that defendant David Wesselman was suddenly confronted with the oncoming vehicle driven by defendant Brian Hart in Wesselman’s lane of travel at the crest of the hill attempting to pass another vehicle, presenting Wesselman with an emergency situation to which he reacted as a reasonably prudent driver would under the circumstances (see, McGraw v Ranieri, 202 AD2d 725, 728; Hornacek v Hallenbeck, 185 AD2d 561, 562; Seraphin v Connaughton, 172 AD2d 509). Wesselman established a prima facie entitlement to summary judgment on the facts while plaintiff has failed to present evidence creating any issue of fact warranting a trial. Mere speculation is insufficient to defeat a motion for summary judgment (see, Hornacek v Hallenbeck, supra). We would therefore vote to reverse and grant summary judgment to Wesselman dismissing the complaint against him.

Cardona, P. J., concurs. Ordered that the order is affirmed, with one bill of costs.

—Appeal from an order of the Supreme Court (Best, J.), entered October 11, 1994 *898in Montgomery County, which denied defendant David Wesselman’s motion for summary judgment dismissing the complaint against him.

Order affirmed, upon the opinion of Justice Robert P. Best.

Mercure, Casey and Peters, JJ., concur.