Opinion
No. 199 SSM 22.
Decided September 11, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 21, 2007. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, Chemung County (Robert C. Mulvey, J.), which had denied a motion by defendants Michael V DeLosa and Allen's Plumbing, Heating and Air Conditioning, Inc. for summary judgment dismissing the complaint against them, (2) granted the motion, (3) awarded summary judgment to the moving defendants, and (4) dismissed the complaint against them.
Plaintiffs commenced this action to recover damages for injuries arising out of a three-car accident which occurred on a slush-covered roadway. It was snowing at the time of the accident. Defendant, in whose vehicle the infant plaintiff was a passenger, lost control of her eastbound vehicle and entered the westbound lane. She collided with a nonparty driver's westbound vehicle and caromed off that vehicle back into the eastbound lane. She then collided with codefendant corporation's vehicle, whose driver had been traveling westbound behind the nonparty's vehicle but had moved into the eastbound lane to avoid the collision.
Frutchey v Felicita, 45 AD3d 1141, reversed.
Friedlander, Friedlander Arcesi, PC, Waverly ( William S. Friedlander of counsel), for appellants.
Coughlin Gerhart LLP, Binghamton ( Keith A. O'Hara of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the motion by defendants Michael V DeLosa and Allen's Plumbing, Heating and Air Conditioning, Inc. for summary judgment denied. Plaintiffs raised triable issues of fact concerning whether (1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident ( see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994, Yesawich Jr., J., dissenting], revd on dissenting mem 84 NY2d 835; Esposito v Wright, 28 AD3d 1142, 1144 [4th Dept 2006]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.