
    Maria Petru et al., Respondents, v. Hertz Corp. et al., Defendants, and Peter Cawley, Appellant.
   Concur — Markewich, Nunez and Kupferman, JJ.; Stevens, P. J., and McGivern, J., dissent in the following memorandum by McGivern, J.: The plaintiff, Maria Petru, was a passenger in a rented car driven by her daughter, Elizabeth. The defendant Cawley was an out-of-State motorist stopped in the right lane of the Henry Hudson Parkway. He was in conversation with a motorcycle policeman. Before aproaehing the Cawley car, Elizabeth Petru (the driver) had intermittent but timely warning her brakes were defective. Nevertheless, she continued on her journey. As the Cawley ear hove into sight, she attempted to stop, but her brakes would not hold. In my judgment, the proximate cause of the accident was the brake failure of the ear in which the plaintiff was a passenger, a fact known to the plaintiff’s driver before the accident, and the consequences of which were reasonably foreseeable. Stopping by the side of the road may have been a statutory violation; there is no proof that particular violation was a proximate cause of the accident, or that with reasonable foreseeability defendant Cawley should have elairvoyantly envisaged a car coming behind with defective brakes. I would reverse and dismiss the complaint.  