Mikoll, J. (dissenting). We respectfully dissent.
Summary judgment should have been granted to defendants Hugh A. Holton, Jr. and Joseph W. Le Febvre. Plaintiffs failed to present any evidentiary facts from which negligence on the part of these defendants could be inferred.
The accident occurred because of defendant Francis P. Gervasio’s vehicle sliding into the opposite lane of traffic into the path of Le Febvre’s vehicle when approximately 100 feet away from it. Being confronted by an emergency situation, Le Febvre need not have taken the best course of action in order to avoid the imminent collision. His conduct was required to be only reasonable in the light of the emergency circumstances confronting him (see, Rowlands v Parks, 2 NY2d 64). In no view of the evidence can it be said that Le Febvre’s veering to the right and applying his brakes in the 100 feet remaining for him to make a response was other than reasonable. From the appearance of the Gervasio car in Le Febvre’s lane until impact was but a matter of seconds. Mere error of judgment or wrong choice of action is not negligence when one is called upon to act quickly in the face of peril (Palmer v Palmer, 31 AD2d 876, 877, affd 27 NY2d 945). Holton and Le Febvre are entitled to summary judgment as a matter of law.
The case of Darmento v Pacific Molasses Co. (183 AD2d 1090, 1091), relied on by the majority, is not applicable to the facts of this case.
Harvey, J., concurs. Ordered that the order is affirmed, with one bill of costs to respondents filing briefs.