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Supreme Court, Appellate Division, Fourth Department, New York.

Thomas SARTORI and Mary Sartori, Plaintiffs-Appellants, v. Suzanne M. GREGOIRE, Defendant.

Suzanne M. Gregoire, Third-Party Plaintiff-Appellant, v. Bradley Pike, Third-Party Defendant-Respondent.

Decided: March 31, 1999

PRESENT:  HAYES, J.P., WISNER, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Lisa Taylor Sofferin, Brown & Kelly, Buffalo, for third-party plaintiff-appellant. Daniel Richard Archilla, of counsel, Buffalo, for third-party defendant-respondent. Stephen Matthew Sorrels, Matusick Spadafora & Verrastro, Buffalo. Joseph Bergen, of counsel, Buffalo, for plaintiffs-appellants.

Plaintiffs commenced this action seeking damages for injuries sustained by Thomas Sartori (plaintiff) when his vehicle collided with a vehicle driven by defendant.   Plaintiffs allege that defendant was negligent in operating her vehicle without turning on her headlights.   Defendant commenced a third-party action against the passenger in her vehicle, alleging that his unwanted sexual advances towards her immediately before she started her vehicle caused her to forget to turn on the vehicle's headlights.   Supreme Court properly granted third-party defendant's motion for summary judgment dismissing the third-party complaint.   While a passenger in a car may be liable if he distracted the driver while operating the vehicle immediately prior to the accident (see, e.g., Collins v. McGinley, 158 A.D.2d 151, 153, 558 N.Y.S.2d 979, appeal dismissed 77 N.Y.2d 902, 568 N.Y.S.2d 917, 571 N.E.2d 87, 78 N.Y.2d 1002, 575 N.Y.S.2d 276, 580 N.E.2d 762;  Whalen v. Daugherty, 30 A.D.2d 604, 290 N.Y.S.2d 3, lv. denied 22 N.Y.2d 647, 295 N.Y.S.2d 1029, 242 N.E.2d 495), it is undisputed that third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred.   Thus, third-party defendant's conduct cannot be deemed a proximate cause of plaintiff's injuries.

We note that, because plaintiffs did not amend their complaint to assert a direct claim against third-party defendant, they are not aggrieved by the order and judgment dismissing the third-party complaint and may not appeal therefrom (see, CPLR 5511;  Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139;  Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, 602 N.Y.S.2d 449, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303).

Appeal by plaintiffs unanimously dismissed and order and judgment affirmed without costs.