Opinion
128 CA 17–01263
02-09-2018
Ashley BENZ, Plaintiff–Respondent, v. Jean CALDER, et al., Defendants, John M. Szczepanski and M.G. Fitzpatrick, Defendants–Appellants.
MCCABE, COLLINS, MCGEOUGH, FOWLER, LEVINE & NOGAN, LLP, HAMBURG (TAMARA M. HARBOLD OF COUNSEL), FOR DEFENDANT–APPELLANT JOHN M. SZCZEPANSKI. BOUVIER LAW, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT–APPELLANT M.G. FITZPATRICK. DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
MCCABE, COLLINS, MCGEOUGH, FOWLER, LEVINE & NOGAN, LLP, HAMBURG (TAMARA M. HARBOLD OF COUNSEL), FOR DEFENDANT–APPELLANT JOHN M. SZCZEPANSKI.
BOUVIER LAW, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT–APPELLANT M.G. FITZPATRICK.
DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiff commenced this action seeking to recover damages for injuries that she allegedly sustained in a multivehicle accident. We conclude that Supreme Court properly denied the respective motions of John M. Szczepanski and M.G. Fitzpatrick (defendants) for summary judgment dismissing the complaint against them. Although defendants met their initial burdens of establishing as a matter of law that plaintiff's negligence in rear-ending Fitzpatrick's vehicle was the sole proximate cause of the accident (see Johnson v. Curry , 155 A.D.3d 1601, 1601, 63 N.Y.S.3d 300 [4th Dept. 2017] ), plaintiff raised an issue of fact by submitting evidence of a nonnegligent explanation for the accident, i.e., the sudden stop of the vehicles operated by defendants (see Borowski v. Ptak , 107 A.D.3d 1498, 1499, 968 N.Y.S.2d 268 [4th Dept. 2013] ; Colonna v. Suarez , 278 A.D.2d 355, 355, 718 N.Y.S.2d 618 [2d Dept. 2000] ).
Finally, Szczepanski's contention regarding the emergency doctrine is raised for the first time on appeal and is therefore not properly before us (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.