Appellate Division of the Supreme Court of New York, 1995

Kozak v. Hyjek

Kozak v. Hyjek
Appellate Division of the Supreme Court of New York · Decided November 15, 1995
221 A.D.2d 999; 635 N.Y.S.2d 560; 1995 N.Y. App. Div. LEXIS 13501
Kozak v. Hyjek

Opinion of the Court

—Order unanimously reversed on the law without costs, cross motion denied, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Defendant established a complete defense by submitting proof in admissible form that the collision was caused by plaintiffs presence in his lane of travel, and plaintiff failed in response to offer proof in admissible form that defendant could have done something to avoid the collision (see, Moshier v Phoenix Cent. School Dist., 199 AD2d 1019, affd 83 NY2d 947; Gouchie v Gill, 198 AD2d 862; cf., Boyes v DeLellis, 210 AD2d 931). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Insurance Law.) Present—Pine, J. P., Law-ton, Wesley, Callahan and Doerr, JJ.

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