Mitchum v. Friend , 705 N.Y.S.2d 152 ( 2000 )

—Order and judgment unanimously reversed on the law without costs, motion denied and complaint and cross claims reinstated. Memorandum: Plaintiff commenced this negligence action seeking damages for injuries she allegedly sustained when defendant Reginald Clark rear-ended her vehicle while it was stopped in the left lane of a highway in Rochester. There were two lanes of traffic traveling in the same direction as plaintiff. Plaintiff was forced to stop her vehicle because of a traffic jam caused by defendants John M. Friend and David J. Cutitta, II, who had stopped their vehicles to argue with one another in an apparent case of road rage. Their vehicles were in the right lane of the highway and, by some accounts, in part of the left lane as well. Traffic was at first able to pass the two vehicles by using the left lane, but then Friend flagged down an approaching police vehicle, which stopped in the left lane adjacent to the two vehicles. Plaintiffs vehicle was stopped behind the police vehicle when the accident occurred.

Supreme Court erred in granting the motion of Friend and the cross motion of Cutitta for summary judgment dismissing the complaint and cross claims against them. Friend and Cutitta contend that, even if they were negligent in stopping their vehicles on the highway (see, Vehicle and Traffic Law § 1202 [a] [1] [j]), their negligence was not a proximate cause of the rear-end collision as a matter of law. We disagree. There is at least a question of fact whether Clark’s rear-ending plaintiffs vehicle was a “normal or foreseeable consequence” of the situation created by the negligence of Friend and Cutitta (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784). Thus, the issue of proximate cause is for the trier of fact to resolve. (Appeal from Order and Judgment of Supreme Court, Monroe County, Galloway, J. — Summary Judgment.) Present — Green, J. P., Hayes, Hurlbutt and Law-ton, JJ.