Opinion
2003-04226.
Decided April 26, 2004.
In an action to recover damages for personal injuries, the defendant JPM Contracting Corp. appeals from so much of an order of the Supreme Court, Queens County (Flug, J.), dated March 28, 2003, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Torino Bernstein, P.C., Mineola, N.Y. (Eva J. Tompkins of counsel), for appellant.
Glinkenhouse, Floumanhaft Queen, Cedarhurst, N.Y. (Alan Queen of counsel), for plaintiff-respondent.
Before: DAVID S. RITTER, J.P., HOWARD MILLER, SONDRA MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the defendant JPM Contracting Corp., and the action against the remaining defendant is severed.
The seven-year-old plaintiff, Eve Cruz, injured her right ring finger when it become wedged between a barricade and the top of a fire hydrant. The defendant JPM Contracting Corp. (hereinafter JPM) allegedly left two metal barricades by a fire hydrant near the plaintiff's home. On the day of the accident, the plaintiff's friends moved the barricades so that one of them was leaning against the other above the fire hydrant. The plaintiff and her friends were sitting on various areas of the barricades, and when two of her friends got off, one of the barricades tilted, causing the injury.
To carry its burden of establishing a prima facie case on its motion for summary judgment, JPM was required to show that its negligence, if any, was not a substantial cause of the events which produced the injury ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315). Although "issues of proximate cause are generally fact matters to be resolved by a jury" ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 659), "[t]here are certain instances * * * where only one conclusion may be drawn from the established facts and * * * the question of legal cause may be decided as a matter of law" ( Derdiarian v. Felix Contr. Corp., supra at 315; see Ramirez v. Velarde, 248 A.D.2d 697).
Here, assuming that JPM negligently left the barricades at the accident site, JPM carried its burden as a matter of law ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563), as the actions of the plaintiff and other children were a superseding cause of her injury. In opposition, the plaintiff failed to raise a triable issue of fact. The children's acts "constituted a superseding cause which so attenuated any alleged negligence by [JPM] from the ultimate injury that the imposition of liability would be unreasonable under the circumstances" ( Dantzler v. New York City Hous. Auth., 269 A.D.2d 420; see Barth v. City of New York, 307 A.D.2d 943, 944, lv denied 1 N.Y.3d 506; Clark v. New York City Hous. Auth., 277 A.D.2d 338, 339). Accordingly, the Supreme Court should have granted JPM's motion for summary judgment.
RITTER, J.P., H. MILLER, S. MILLER and CRANE, JJ., concur.