—Order unanimously reversed on the law without costs, motions granted and complaint and amended third-party complaint dismissed. Memorandum: Plaintiff commenced this wrongful death action after plaintiff’s decedent was killed while a passenger in a vehicle owned by third-party defendant National Fuel Gas Distribution Corporation and driven by third-party defendant Joseph A. Becker. Defendant’s vehicle struck a deer that was running across the road, propelling the deer into the windshield of the oncoming vehicle driven by Becker. Plaintiff’s decedent was killed when the deer crashed through the windshield.
Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint and third-party defendants’ motion for summary judgment dismissing the amended third-party complaint. The accident occurred during the afternoon on a dry, sunny day. Defendant and third-party defendants submitted evidence establishing that the deer ran from a bushy area to the right of defendant across the road in front of defendant’s vehicle. Defendant did not see the deer until it was less than 10 feet in front of his vehicle, and he had time only to take his foot off the accelerator and brace his hands on the steering wheel for impact. Becker did not see the deer