182 A.D.2d 543 | N.Y. App. Div. | 1992
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered July 8, 1991, denying the Stephens defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The Clerk is directed to enter judgment in favor of the appellants dismissing the complaint as to them.
The Stephens vehicle, driven by defendant, Lawrence Stephens, was proceeding at about 40 to 45 miles per hour in moderate traffic in the center northbound traffic lane on the FDR Drive. The Vargas vehicle, in which plaintiff was a passenger, was, according to defendant Lawrence Stephens, driving alongside of his vehicle in the right lane for the equivalent of several blocks before the accident. Vargas claims he had been traveling in the middle lane but then entered the right lane when he sneezed. In any event, it is undisputed that at about 104th Street on the Drive, Vargas, because of his sneezing, lost control of his vehicle, which struck the cement wall abutting the right side of the roadway, bounced
On the uncontroverted facts presented there can be no liability imposed on the Stephenses. " '[T]here is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against’ ”, (Viegas v Esposito, 135 AD2d 708, 709, Iv denied 72 NY2d 801, quoting Silver v Sheraton-Smithtown Inn, 121 AD2d 711.) On these facts, it is clear that Lawrence Stephens had no reasonable opportunity to avoid the unforeseen contingency created when the Vargas vehicle struck the concrete abutment and went out of control, veering into his lane into the path of his car. On this record, there were no alternatives available to Stephens, given his testimony that the accident occurred at the moment he applied his brakes, which as noted, he did immediately upon the Vargas vehicle’s contact with the abutting wall. The Vargas deposition does nothing to establish a question of fact with respect to the Stephens defendants’ liability. In fact, Vargas, who submitted no affidavit in opposition to the motion, testified that the entire event involved "a question of seconds.” The questions of fact alluded to by the IAS court, involving basically the location of the vehicles when they finally came to rest, have nothing to do with the manner in which the accident occurred and do not give rise to any issue as to liability.
Finally, the affidavit of the certified mechanical engineer and accident reconstruction specialist adds nothing to plaintiff’s case. The expert’s contribution consists of a recital that