Piotrowski v. Nye

262 A.D.2d 991, 692 N.Y.S.2d 270, 1999 N.Y. App. Div. LEXIS 7171

Opinions

—Order affirmed without costs. Memorandum: Supreme Court properly granted the motion of James G. Fink (defendant) for summary judgment dismissing the complaint and cross claim against him. Plaintiffs commenced this action to recover damages for injuries sustained by Thomas G. Piotrowski (plaintiff) in a multi-vehicle accident. While defendant was waiting to make a left turn, his truck was struck from behind and propelled into the path of plaintiffs oncoming truck. We reject plaintiffs’ contention that liability may be premised on the alleged failure of defendant to keep the wheels of his truck straight while waiting to turn (see, Murphy v Spickler, 224 AD2d 814). “[Njegligence does not exist unless there is a reasonable likelihood of danger as a consequence of the act complained of’ (O’Neill v City of Port Jervis, 253 NY 423, 433). “The risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344, rearg denied 249 NY 511). The failure of defendant to keep the wheels of his truck straight endangered no one unless he was struck from behind, an occurrence that was not reasonable to expect.

All concur except Balio, J., who dissents and votes to reverse in the following Memorandum.