Summary
In Esposito, the plaintiff argued that the defendant Joan Gleeson was negligent in permitting the her automobile to run out of gas, which caused Gleeson to pull over to the side of the road.
Summary of this case from De Nise v. N.Y.C. TransitOpinion
October 14, 1997
Appeal from the Supreme Court, Nassau County (Lally, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and any cross claims are dismissed insofar as asserted against the defendant Joan Gleeson.
Contrary to the plaintiff's contentions, even if the appellant was negligent in permitting her automobile to run out of gas and pulling over to the side of the road, this was not a proximate cause of the death of the plaintiff's decedent. Rather, at most the appellant merely furnished the condition for the occurrence of the accident ( see, Dunlap v. City of New York, 186 A.D.2d 782; Williams v. Envelope Tr. Corp., 186 A.D.2d 797). Furthermore, it was not foreseeable that the plaintiff's decedent would be hit by the oncoming vehicle of the defendant Joseph Rea as a consequence of the appellant's alleged negligence, especially since the plaintiff's decedent eschewed the comparative safety of the available sidewalk, and instead gratuitously chose to stand in the roadway while the car was being fueled ( see, Ventricelli v Kinney Sys. Rent A Car, 45 N.Y.2d 950; Mikelinich v. Giovannetti, 239 A.D.2d 471; Hallett v. Akintola, 178 A.D.2d 744). Accordingly, the appellant demonstrated her entitlement to summary judgment.
Miller, J.P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.