Opinion
June 26, 1995
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff commenced an action against the County of Suffolk and Jay Dee Tomfor Transportation (hereinafter Jay Dee) based on injuries she sustained while driving on a County road. The plaintiff was driving a minibus leased by her employer, Driftwood Day Camp (hereinafter Driftwood), from Jay Dee. The minibus flipped over and hit a tree after being forced off the roadway and onto the road shoulder by another vehicle. The plaintiff alleged that she lost control of the minibus because of the condition of the road shoulder and the vehicle. The defendants moved for summary judgment dismissing the plaintiff's complaint in the main action. The defendants also commenced third-party actions impleading Driftwood, and Driftwood moved for summary judgment dismissing the third-party complaints.
The Supreme Court properly found that the County failed to establish a cause of action to recover damages for negligence against Driftwood since the County failed to establish that Driftwood had breached any duty owing to it or to the plaintiff (see, Sommer v. Federal Signal Corp., 79 N.Y.2d 540; Garrett v Holiday Inns, 58 N.Y.2d 253). Accordingly, the County's claim for contribution cannot be maintained. For the same reason, Jay Dee's third-party cause of action sounding in negligence must fail.
There are, however, triable issues of fact with respect to Jay Dee's claims against Driftwood based on breach of the lease. Although Driftwood argues on appeal that Jay Dee's claims for contractual indemnification and breach of the contractual obligation to obtain insurance should have been dismissed, these issues were not presented to the Supreme Court and, therefore, are unpreserved for appellate review.
Further, denial of the defendants' motions for summary judgment dismissing the plaintiff's complaint was proper. The plaintiff maintains that the reason she lost control of the vehicle after being forced onto the road shoulder was that the shoulder was not level with the roadway and that the vehicle "would not go" when she turned the steering wheel to the left in her attempt to get back onto the roadway. Whether the conduct of the driver of the vehicle that forced the plaintiff's vehicle off the roadway and onto the shoulder constituted a superseding, intervening event was not established as a matter of law, but rather presented an issue to be resolved by the trier of fact (see, Mercado v. Vega, 77 N.Y.2d 918, 920; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315). It is neither extraordinary nor unforeseeable that a vehicle may be forced off a roadway and onto the road shoulder (see, Kush v. City of Buffalo, 59 N.Y.2d 26, 33; Bottalico v State of New York, 59 N.Y.2d 302, 305). In addition, there was evidence provided by the police department mechanic who inspected the vehicle after the accident that the brakes were overadjusted, which could have caused the vehicle to pull to one side when the brakes were applied. Accordingly, the proof submitted to the Supreme Court presented questions of fact with respect to the proximate cause of the plaintiff's injuries. Miller, J.P., Thompson, Friedmann and Florio, JJ., concur.