GILMORE v. Michelle L. Mark, appellant. (1999)

In an action to recover damages for personal injuries, the defendant Michelle L. Mark appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 23, 1998, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as they are asserted against the defendant Michelle L. Mark, and the action against the remaining defendant is severed.

Contrary to the plaintiff's contentions, even if the appellant had been negligent in parking her vehicle on the eastbound, center median of the Long Island Expressway, her actions were not the proximate cause of the plaintiff's injury.   Rather, the appellant's conduct furnished the condition for the occurrence of the accident, which took place when the plaintiff exited her vehicle, and then unexpectedly ran across the westbound lanes of the highway, where he was struck by a van (see, Haylett v. New York City Tr. Auth., 251 A.D.2d 373, 674 N.Y.S.2d 75;  Esposito v. Rea, 243 A.D.2d 536, 665 N.Y.S.2d 287;  see also, Feehan v. Hong-Suh Park, 248 A.D.2d 430, 668 N.Y.S.2d 946;   Shatz v. Kutshers Country Club, 247 A.D.2d 375, 668 N.Y.S.2d 643;  Button v. Rainbow Prods. & Servs., 234 A.D.2d 664, 650 N.Y.S.2d 869;  Stein v. Pat Noto Inc., 226 A.D.2d 624, 641 N.Y.S.2d 353;  Wright v. New York City Tr. Auth., 221 A.D.2d 431, 633 N.Y.S.2d 393;  cf., Livelli v. Teakettle Steak House, 212 A.D.2d 513, 514, 622 N.Y.S.2d 109).   In light of these facts, the appellant's motion for summary judgment should have been granted.

MEMORANDUM BY THE COURT.