Doyle v. Watson

Casey, J. Appeal from an order of the Supreme Court (Best, J.), entered February 6, 1991 in Montgomery County, which, inter alia, denied defendant Tracy Smith’s motion for summary judgment dismissing the complaint and all cross claims against her. This negligence action arises out of a motor vehicle accident which occurred while plaintiff was attempting to push the stalled vehicle that he had been driving. Among the defen [903] dants sued by plaintiff is the passenger in the stalled vehicle, defendant Tracy Smith (hereinafter defendant), who assisted plaintiff in his efforts to steer the vehicle as he pushed it. Defendant moved for summary judgment, contending that she was not the operator of the vehicle. Supreme Court denied the motion, resulting in this appeal. Defendant argues on this appeal that her conduct in assisting plaintiff’s efforts to steer the stalled vehicle did not, as a matter of law, constitute operation of the vehicle. We are of the view that the question of whether defendant was an operator of the vehicle is irrelevant to the issue of her liability to plaintiff. Since plaintiff seeks to recover damages on a negligence theory, the issue is whether defendant’s conduct amounted to negligence that was a proximate cause of the accident, and we agree with Supreme Court that there are questions of fact precluding summary judgment on this issue. Although the question of whether defendant was an operator of the vehicle may be relevant for insurance purposes (see, Electric Ins. Co. v Boutelle, 122 AD2d 332), it is not relevant to the issue of defendant’s negligence. Mahoney, P. J., Mikoll, Mercure and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.