Opinion
CA 03-02099.
Decided March 19, 2004.
Appeals from an order and judgment (one document) of the Supreme Court, Erie County (John F. O'Donnell, J.), entered March 19, 2003. The order and judgment denied defendants' motions for summary judgment dismissing the complaint in a personal injury action.
ROE, SCHANTZ AND IACONO, BUFFALO (MITCHELL P. LENCZEWSKI OF COUNSEL), FOR DEFENDANTS-APPELLANTS LINDSAY P. GRAY AND SUSAN L. GRAY.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT SEAN C. KEEFE.
BARRY S. DOLGOFF, WILLIAMSON, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the motions of defendants seeking summary judgment dismissing the complaint. Plaintiff commenced this action to recover damages for injuries he sustained when he was struck by a motor vehicle. Plaintiff was standing between two motor vehicles that had been involved in a minor traffic accident when one of the motor vehicles was rear-ended by a third motor vehicle operated by an unknown driver who fled the scene. Contrary to the contention of defendants, there is an issue of fact whether they were negligent in failing to remove their operable motor vehicles from the highway before the second accident occurred ( see Vehicle and Traffic Law § 1201 [a]; 8B N.Y. Jur 2d, Automobiles § 959; see also Shohet v. Sheehan, 238 A.D.2d 573; cf. Siegel v. Boedigheimer, 294 A.D.2d 560; Russo v. Sabella Bus Co., 275 A.D.2d 660).
Contrary to the further contention of defendants, there is an issue of fact whether defendants' alleged negligence was a substantial factor in producing plaintiff's injuries ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784). "Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" ( id.). "Where, as here, questions exist concerning what is foreseeable or normal the issues are for the fact-finder to resolve" ( Shohet, 238 A.D.2d at 574; see Ferrer v. Harris, 55 N.Y.2d 285, 293-294, mot to amend remittitur granted 56 N.Y.2d 737). Neither Whitehead v. Reithoffer Shows ( 304 A.D.2d 754) nor Siegel ( 294 A.D.2d at 562) compels a different result. In Whitehead, unlike here, there was no proof that the path of the motor vehicle was affected in any way by the motor vehicle blocking the traffic lane. In Siegel, unlike here, it was uncontroverted that the plaintiff motorist safely changed lanes to avoid the vehicle that was blocking traffic before becoming involved in the accident that resulted in his injuries.