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Fact that Driver’s Negligence Was Deemed “Sole Proximate Cause” of Passenger’s Injury Did Not Warrant the Dismissal of Claims Against the Other Driver Involved in the Collision

The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff.  Plaintiff sued the driver of the car she was in (Pistorino).  Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, the motion court determined Pistorino’s act was the sole proximate cause of plaintiff’s injury and granted summary judgment to the plaintiff on liability. Allen, the driver of the other car, moved for summary judgment dismissing the claims against him based on the motion court’s “sole proximate cause” finding.  The Second Department reversed the motion court’s dismissal of the claims against Allen and wrote:

The Supreme Court erred, however, in granting that branch of Allen’s motion which was for summary judgment dismissing all cross claims asserted against him. Allen’s motion was based entirely upon the preclusive effect of the finding made by the Supreme Court in deciding the plaintiff’s motion for summary judgment, that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident. However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised by the plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.  Anzel v Pistorino, 2013 NY Slip Op 02362, 2011-08058, 2011-11125, Index No 4001/11, 2nd Dept, 4-10-13

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