
    Nettie Pergola et al., Plaintiffs, v. Charles A. Nicastro, Defendant.
    Supreme Court, Special Term, Kings County,
    November 20, 1959.
    
      Myron Epstein for plaintiffs.
    
      Raymond J. MacDonnell for defendant.
   Walter R. Hart, J.

Plaintiffs, passengers in defendant’s vehicle, move for summary judgment in this action to recover damages for personal injuries. In support of the motion plaintiffs refer to the statement of defendant, set forth in his report to the Motor Vehicle Bureau as to the manner in which the accident occurred, as follows: ‘ ‘ While driving west on Gropsey Ave. a child, about 15 ft. in front of me, started to cross the street. I became panicky, lost control of car, hit my gas pedal instead of brake and ran into a light pole, located in middle of Gropsey Ave.” In opposition to the motion, defendant in his affidavit states that he was proceeding in the second lane from the northerly curbline of Gropsey Avenue and:

Just as the front of my car passed the intersection of Bay 49th Street and Gropsey Avenue, I noted a small boy emerging from my right. When I first saw the boy he was but 15 feet to the front and right of my car. In order to avoid the accident with the boy I immediately swerved my oar sharply to the left.

“ This accident was not caused by my negligence but by the negligence of the boy who started to cross the street away from the crosswalk and who emerged from my right, running fast.” Defendant resists this motion on the theory that he was confronted with a sudden emergency and that he exercised the degree of care of a reasonably prudent person under the circumstances. It is to be noted, however, that defendant failed to state any facts to explain why he failed to see the boy until the latter was only 15 feet to the front and right of his car at ‘1 the crosswalk ’ ’ or why he ‘ ‘ panicked ’ ’ and stepped on the gas pedal instead of the brake before swerving into the light stanchion. He merely states in his opposing affidavit that when he saw the child in a perilous condition [he] panicked.” Therefore it may be said as a matter of law that defendant was guilty of negligence in the operation of his motor vehicle. Accordingly plaintiffs ’ motion for summary judgment is granted. Settle order on notice.  