Opinion
February 5, 1962
In a negligence action, the defendant Levin appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, entered June 9, 1961, as denied his motion for summary judgment as against plaintiff. Said order also denied similar relief requested by plaintiff as against all defendants, and requested by defendant Pierson, the owner of one of the vehicles involved, as against defendant Teschmacher, the operator of Pierson's vehicle, based on Pierson's cross complaint against him. But no appeal has been taken with respect to such denial. Order, insofar as appealed from by defendant Levin, reversed, with $10 costs and disbursements payable by plaintiff; said defendant's motion for summary judgment against the plaintiff granted; and action severed as to said defendant. The evidence discloses that plaintiff was a passenger in defendant Levin's automobile, which was stopped at an intersection in compliance with a red traffic light. For the same reason another vehicle was also stopped directly in front of the Levin automobile. Both automobiles were thus stationary for approximately two minutes when a truck, operated by defendant Teschmacher and owned by defendant Pierson, collided with the Levin car, driving it into the other car immediately ahead and injuring plaintiff. On examination before trial defendant Teschmacher testified that, as he approached the intersection controlled by the traffic light, he observed that the light was red in his direction; that he saw the two cars stopped for the red light; that as he approached the vehicles he slowed down but his foot slipped off the brake pedal and his truck collided with the Levin vehicle. The act of defendant Levin in bringing his vehicle to a halt at the red traffic signal was not an improvident or careless act. The proximate cause of the accident was not any act or omission on his part. Hence, he is free from negligence and is entitled to summary judgment in his favor as against the plaintiff. Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.