Opinion
2014-01-29
Byung H. LEE, et al., appellants, v. D. DANIELS CONTRACTING, LTD., et al., respondents.
Dinkes & Schwitzer, P.C., New York, N.Y. (Andrea M. Arrigo of counsel), for appellants. Law Offices of Curtis Vasile, P.C., Merrick, N.Y. (Michael J. Dorry of counsel), for respondents D. Daniels Contracting, Ltd., and Sean G Prise.
Dinkes & Schwitzer, P.C., New York, N.Y. (Andrea M. Arrigo of counsel), for appellants. Law Offices of Curtis Vasile, P.C., Merrick, N.Y. (Michael J. Dorry of counsel), for respondents D. Daniels Contracting, Ltd., and Sean G Prise.
Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T. Reagan of counsel), for respondent Call–A–Head Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Siegal, J.), dated April 30, 2012, which granted the separate motions of the defendant Call–A–Head Corp. and the defendants D. Daniels Contracting, Ltd., and Sean G. Prise for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs payable to the defendants appearing separately and filing separate briefs.
The instant action arises out of a motor vehicle accident that occurred on the night of October 24, 2008, when the plaintiff Byung H. Lee (hereinafter the injured plaintiff), who was driving his vehicle northbound on Cross Bay Boulevard, struck a garbage truck owned by the defendant D. Daniels Contracting, Ltd., and operated by the defendant Sean G. Prise. Prise had been in the process of picking up garbage from a property owned by the defendant Call–A–Head Corp., and had parked the truck in such a fashion that it was facing westward and blocking the right lane of the roadway on which the plaintiff was traveling. The plaintiff testified at his deposition that he first saw the truck only a second before he struck it. The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, alleging that they were not liable for the happening of the accident since the sole proximate cause of the accident was the plaintiff's failure to see that which he should have seen.
The Supreme Court properly granted the defendants' motions. Although the issue of proximate cause is generally one for the jury ( see Derdiarian v. Felix Contr. Corp, 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666), liability may not be imposed upon a party who “merely furnished the condition or occasion for the occurrence of the event” but was not one of its causes (Sheehan v. City of New York, 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832; see Batista v. City of New York, 101 A.D.3d 773, 778, 956 N.Y.S.2d 85; Shatz v. Kutshers Country Club, 247 A.D.2d 375, 668 N.Y.S.2d 643; Williams v. Envelope Transit Corp., 186 A.D.2d 797, 798, 589 N.Y.S.2d 345). Here, the defendants demonstrated their entitlement to judgment as a matter of law by presenting evidentiary proof that Prise's conduct in stopping his truck partially in the roadway merely furnished the condition for the accident, but was not a proximate cause thereof ( see Sheehan v. City of New York, 40 N.Y.2d at 503, 387 N.Y.S.2d 92, 354 N.E.2d 832; Batista v. City of New York, 101 A.D.3d at 778, 956 N.Y.S.2d 85; Siegel v. Boedigheimer, 294 A.D.2d 560, 562, 743 N.Y.S.2d 137; Haylett v. New York City Tr. Auth., 251 A.D.2d 373, 674 N.Y.S.2d 75; Marsella v. Sound Distributing Corp., 248 A.D.2d 683, 684, 670 N.Y.S.2d 559; Gleason v. Reynolds Leasing Corp., 227 A.D.2d 375, 376, 642 N.Y.S.2d 79. In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' contention that the motions were premature ( see CPLR 3212[f] ) is without merit. RIVERA, J.P., HALL, ROMAN and MILLER, JJ., concur.