White v Spectacular Limousine Serv., Inc.

White v Spectacular Limousine Serv., Inc. 2010 NY Slip Op 00071 [69 AD3d 433] January 7, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Patricia A. White, Respondent,
v
Spectacular Limousine Service, Inc., et al., Defendants, and Marybeth Andrews, Appellant.

—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Montgomery L. Effinger of counsel), for appellant.

Kerner & Kerner, New York (Kenneth T. Kerner of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about May 18, 2009, which denied defendant-appellant Andrews's motion for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against Andrews. The Clerk is directed to enter judgment accordingly.

In support of her motion, Andrews showed that the vehicle in which plaintiff was a passenger first hit and bounced off the vehicle in front of it, and then hit and bounced off the highway's concrete barrier, before making contact with Andrews's vehicle, and that neither the driver of plaintiff's vehicle, nor plaintiff herself, ever stated during their depositions that Andrews contributed to the accident in any way. This was sufficient to show, prima facie, that Andrews was faced with an emergency situation not of her own making, and was not at fault for the accident (see Ward v Cox, 38 AD3d 313, 314 [2007]). In opposition, plaintiff argued that Andrews was negligent in failing to signal prior to changing lanes, referring to the portion of Andrews's deposition in which she stated that when she observed plaintiff's vehicle in her rearview mirror swerving and fishtailing down the ramp on her right at about 70 miles per hour, she immediately moved from the middle lane into the left lane, without signaling, in order to get out of the way. Plaintiff's driver, however, never stated at his deposition that he attempted to avoid striking Andrews but was unable to do so because she changed lanes without signaling. Thus, any failure to signal was not a proximate cause of the accident. We have considered plaintiff's other arguments and find them without merit. Concur—Mazzarelli, J.P., Friedman, Nardelli, Renwick and RomÁn, JJ.