LEWIS v. Leroy Sebastien, et al., Defendants. (2007)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 22, 2005, which granted the motion by defendant Konan and the cross motion by defendants Gomez and Americana for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the cross motion denied and the complaint reinstated as against Gomez and Americana, and otherwise affirmed, without costs.

 Inasmuch as plaintiff testified that the Gomez vehicle, in which she was a passenger, first struck the car driven by Konan before it was struck in the rear by the car driven by defendant Sebastien, there are contradictory versions as to how the accident occurred, thus precluding summary disposition (see DeRosa v. Valentino, 14 A.D.3d 448, 788 N.Y.S.2d 369 [2005] ).   On the other hand, even under plaintiff's version (which is not supported by either Konan or Gomez) that the Konan vehicle struck a fourth car that had swerved in front of it, there is no evidence suggesting that Konan had been driving so fast that he would have been unable to respond to the exigent circumstances in a non-negligent manner.   Although Gomez admitted striking the Konan vehicle, he did not testify that Konan swerved into his lane.   Under such circumstances, the complaint against Konan was properly dismissed, since there is nothing in the record to support an allegation that he was negligent.