Florio v. Baierlein

This appeal stems from an automobile accident which occurred when the delivery truck driven by the defendant Henry Baierlein, in which the appellant was a passenger, careened out of control on Sunrise Highway, vaulted over a concrete divider, and landed on the hood of an oncoming vehicle driven by the respondent Joann Florio. The respondents’ motion papers clearly established that the subject accident was not occasioned by any negligence on the part of Joann Florio, who was in no position to take any steps to either reasonably foresee or avoid the collision (see, Morowitz v Naughton, 150 AD2d 536; see also, Rivas v Metropolitan Suburban Bus Auth., 203 AD2d 349; Moller v Lieber, 156 AD2d 434; Tenenbaum v Martin, 131 AD2d 660). The papers submitted by the appellant in opposition to the motion were insufficient to establish the existence of material issues of fact which require a trial of the action (see generally, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court properly awarded summary judgment to the respondents. Ritter, J. P., Thompson, Pizzuto and Hart, JJ., concur.