
    Theodore Belcher, as Administrator of the Estate of Barbara Belcher, Deceased, et al., Respondents, v. Joyce Kesten et al., Defendants, and Metropolitan Tobacco Company, Inc., et al., Appellants. (Action No. 1.) (And Pour Other Actions.)
   Martuscello, Christ and Brennan, JJ., concur; Shapiro, J., concurs in reversal of the judgment insofar as appealed from, but otherwise dissents and votes to grant a new trial as between plaintiffs and the appealing defendants, with the following memorandum: The deceased was a passenger in the ear driven by defendant Raunecker and owned by defendant Metropolitan Tobacco Company, Inc. That car was in a collision with the car driven by defendant Kesten. The jury returned a verdict against all those defendants and also against defendant Rampersad, the driver of a third car, but only Metropolitan and Raunecker appealed from the judgment in favor of plaintiffs. I am in accord with the determination of the majority that the jury’s finding of negligence on the part of the appealing defendants is against the weight of the credible evidence and that there should therefore be a reversal of the judgment insofar as it was entered against them on that finding. I do not agree with the majority’s conclusion that plaintiffs’ complaint must be dismissed because there is no evidence in this record of any act of omission on the part of Raunecker * * * which established his negligence or from which such negligence can be reasonably inferred.” Kesten testified that just past 104th Avenue she saw the Raunecker ear come from the northbound lane, starting toward her, that she saw it coming across the center divider, and that at the moment of impact her car was in the southbound lane and the bumper of the Raunecker car was over the solid line on her side of the road. That testimony may not be sloughed off merely because we believe that it is contrary to the weight of all the other evidence in the case. It creates an issue of fact negating our right to dismiss the complaint as a matter of law (Carter v. Castle Elec. Contr. Co. 26 A D 2d 83; African Metals Corp. v. Bullowa 288 N. Y. 78, 81; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245; Wessel v. Krop, 30 A D 2d 764; Prince v. City of New York, 21 A D 2d 668). Rabin, P. J., not voting.  