Yesawich Jr., J. P. (dissenting). We respectfully dissent. It is undisputed that immediately prior to the accident, defendant crossed a double, solid yellow line in an attempt to pass plaintiff’s vehicle. Although plaintiff presented evidence from which the jury could have found that defendant’s conduct in illegally attempting to pass—into, as it developed, the path of oncoming traffic—placed him in a position where he was constrained to apply his brakes forcefully, causing them to fail, Supreme Court’s refusal to charge that negligence could be inferred from defendant’s violation of the Vehicle and Traffic Law effectively and improperly, in our view, foreclosed the jury from concluding that defendant was answerable for his misconduct.
The majority seems to have determined, as a matter of law, that defendant’s conduct was not a proximate cause of the ensuing accident; however, where, as here, plaintiff has made a prima facie showing that defendant was negligent, the questions of proximate cause and the foreseeability of intervening events (e.g., the brake failure) are properly left for the trier of fact to resolve (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315; see also, Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 289, affd 51 NY2d 752). And, while it is true, as the majority speculates, that the jury could have found that plaintiff’s entry onto the highway was the precipitating cause of the accident, it does not appear—the verdict sheet is not in the record—that the jury even reached the issue of proximate cause. Indeed, all the record indicates is that the jury decided that defendant was not negligent. Had the jury been made aware that negligence could be inferred from defendant’s
*944traffic law transgression, and had it so found, it could have reasonably determined that defendant’s unlawful attempt to pass plaintiff’s vehicle necessarily shortened the time and distance available for stopping, and that defendant’s conduct was therefore a substantial factor in causing the accident. Accordingly, we would reverse and remit to Supreme Court for a new trial.
Levine, J., concurs. Ordered that the judgment is affirmed, with costs.