Heimrich v. Stevens , 415 N.Y.S.2d 158 ( 1979 )

— Order and judgment unanimously reversed, with costs, and motion denied. Memorandum: This is an appeal from an order granting summary judgments to defendants Catherine Stevens and William Stevens in a negligence action in which the infant plaintiffs are seeking to recover for personal injuries that occurred when a vehicle owned by William Stevens and parked by Catherine Stevens was struck by a vehicle owned and operated by another defendant. At the time of the accident the plaintiffs were sitting on the fender of the Stevens car which had been parked on the "wrong” side of Green Road. Plaintiff has alleged and we must assume on this appeal, that the Stevens vehicle was parked partially on the paved portion of Green Road. Since negligence actions usually involve many issues of fact, including the reasonableness of the parties’ conduct, they are rarely subject to being dismissed by motion for summary judgment (Scurti v City of New York, 40 NY2d 433, 442). Only in those instances where there is no factual conflict in the proof concerning the conduct of the parties is granting a motion for summary judgment the proper remedy (Andre v Pomeroy, 35 NY2d 361, 364; Carrillo v Kreckel, 43 AD2d 499). Here there are as yet undetermined issues of fact concerning the extent to which the Stevens car obstructed passage on Green Road and the ability of driver defendant Ackley to avoid the collision. Until these matters are resolved the issues of negligence and causation cannot be determined. Unlike the situation in Sheehan v City of New York (40 NY2d 496) this accident happened with little warning at night along a two-lane town highway. Further, there is here the disputed contention that a third vehicle was involved. In light of these various factual contentions, granting summary judgment for the Stevens defendants was premature. (Appeal from order and judgment of Monroe Supreme Court — dismiss complaint.) Present —Cardamone, J. P., Schnepp, Callahan, Doerr and Moule, JJ.