(dissenting in part and concurring in part). We are not persuaded that any act or failure to act on the part of defendant Archie Lawrence & Son or third-party defendant, Seaboard Industries, was a proximate cause of the injuries sustained by plaintiff Sheri Denkensohn (hereinafter plaintiff). The plain, simple and tragic fact is that plaintiff, trained in water safety and diving techniques and employed as a lifeguard at the time of her accident, without knowing the depth of the water and after removing her contact lenses, dove into an unlighted pool from the top of a slide in the dark of the night. Although she was assured by David Davenport that it was all right to dive, she could not see the contour of the pool, the people in it or the level of the water. Moreover, in her testimony at an examination before trial, she stated that had she been able to see she would not have executed her dive.
As a basis for denying summary judgment to Archie Lawrence and Seaboard, the majority finds questions of fact exist as to whether Archie Lawrence had a postsale duty to warn, and if so, whether it was complied with, and that Seaboard offered no evidence to refute plaintiff’s allegations of defective design of the slide, and that diving off of a slide was a foreseeable use of such a facility. This, the majority concludes, creates factual issues of proximate cause.
As to Archie Lawrence, whether there were warning signs posted is, under the circumstances of this case, totally irrelevant. The record demonstrates that had decals or warnings been posted, plaintiff would not have seen them. As to Seaboard, there is nothing in this record to suggest that a slide of a different design would have altered the ritual articulated by David Davenport for those entering the pool for the first time. It is the urging of David and the poor judgment of plaintiff that provide the proximate causes for the injuries sustained *65by plaintiff. They are the independent intervening acts, extraordinary under the circumstances, which supersede and break any alleged causal nexus between a duty owed by Archie Lawrence and Seaboard and the injuries sustained by plaintiff (see, Smith v Stark, 67 NY2d 693, 694; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see also, Nikolaus v State of New York, 129 AD2d 865, 866, appeal dismissed 70 NY2d 728, lv denied 70 NY2d 616).
Accordingly, we would affirm the order appealed from.
Weiss and Mercure, JJ., concur with Levine, J.; Kane, J. P., and Mikoll, J., dissent in part and concur in part and vote to affirm in an opinion by Kane, J. P.
Order modified, on the law, without costs, by reversing so much thereof as granted summary judgment dismissing the complaint, cross claims and counterclaims asserted against defendant Archie Lawrence & Son and third-party defendant, Seaboard Industries; motions denied as to those claims; and, as so modified, affirmed.