Opinion
2021–04634 Index No. 509923/18
07-05-2023
Nereida CASTILLO, respondent, v. UNIQUE ROOFING OF NEW YORK, INC., et al., defendants, J.B. Hunt Transport, Inc., et al., appellants.
Rawle & Henderson, LLP, New York, NY (Gabriel A. Arevalo and Anthony D. Luis of counsel), for appellants. Koenigsberg & Associates, P.C. (Paul K. Koenigsberg and Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
Rawle & Henderson, LLP, New York, NY (Gabriel A. Arevalo and Anthony D. Luis of counsel), for appellants.
Koenigsberg & Associates, P.C. (Paul K. Koenigsberg and Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In a consolidated action to recover damages for personal injuries, the defendants J.B. Hunt Transport, Inc., Andre Omar Robinson, and C & S Wholesale Grocers, Inc., appeal from an order of the Supreme Court, Kings County (Debra Silber, J.), dated June 22, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment dismissing all affirmative defenses alleging comparative negligence of the defendants J.B. Hunt Transport, Inc., Andre Omar Robinson, and C & S Wholesale Grocers, Inc.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In February 2018, the plaintiff was employed with nonparty Halo Event Group as a delivery person, when she allegedly was injured in a motor vehicle accident. The plaintiff had double-parked her employer's box truck in front of a building located in Manhattan, when it was struck in the rear by a truck owned by the defendant Unique Roofing of New York, Inc. (hereinafter Unique Roofing), and operated by the defendant Humberto A. Barrantes. When the impact occurred, the plaintiff was in the rear of the box truck sorting packages for delivery in the immediate area. The plaintiff alleges that immediately prior to the accident, the Unique Roofing vehicle tried to avoid a collision with a tractor-trailer, which was operated by the defendant Andre Omar Robinson. The tractor portion of the tractor-trailer allegedly was owned by the defendant J.B. Hunt Transport, Inc., while the trailer portion allegedly was owned by the defendant C & S Wholesale Grocers, Inc.
The plaintiff commenced two separate personal injury actions, which were subsequently consolidated into the instant action. Thereafter, the plaintiff moved, inter alia, for summary judgment dismissing all affirmative defenses alleging comparative negligence. By order entered June 22, 2021, the Supreme Court granted that branch of the plaintiff's motion and dismissed all affirmative defenses alleging comparative negligence. Robinson, J.B. Hunt Transport, Inc. and C & S Wholesale Grocers, Inc. (hereinafter collectively the tractor-trailer defendants) appeal.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Marazita v. City of New York, 202 A.D.3d 951, 163 N.Y.S.3d 219 ). A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case against a defendant on the issue of that defendant's liability (see Rodriguez v. City of New York, 31 N.Y.3d at 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 164 N.Y.S.3d 497 ; see e.g. Poon v. Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 ). "[However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" ( Ramirez v. Wangdu, 195 A.D.3d 646, 646, 144 N.Y.S.3d 630 ; see Sebagh v. Capital Fitness, Inc., 202 A.D.3d 853, 162 N.Y.S.3d 440 ; Poon v. Nisanov, 162 A.D.3d at 808, 79 N.Y.S.3d 227 ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Sage v. Taylor, 195 A.D.3d 971, 146 N.Y.S.3d 496 ; Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63 ).
There can be more than one proximate cause of an accident (see Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604 ), and the issue of comparative negligence is generally a question for the jury to decide (see Wiessner v. Phillips, 201 A.D.3d 776, 777, 156 N.Y.S.3d 914 ; Calderon v. Cruzate, 175 A.D.3d 644, 648, 107 N.Y.S.3d 399 ). However, "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" ( Ely v. Pierce, 302 A.D.2d 489, 489, 755 N.Y.S.2d 250 ; see Federico v. Defoe Corp., 138 A.D.3d 682, 684, 29 N.Y.S.3d 454 ; Castillo v. Amjack Leasing Corp., 84 A.D.3d 1298, 924 N.Y.S.2d 156 ).
Here, the plaintiff established, prima facie, that she was not at fault in the happening of the subject accident (see 34 RCNY 4–08[f][1]; cf. Brito v. RDJ Express Transp., 135 A.D.3d 651, 23 N.Y.S.3d 572 ; Pickett v. Verizon N.Y. Inc., 129 A.D.3d 641, 10 N.Y.S.3d 870 ; Gonzalez v. Ceesay, 98 A.D.3d 1078, 1079, 951 N.Y.S.2d 200 ; see also Colletti v. City of New York, 208 A.D.3d 749, 751, 174 N.Y.S.3d 416 ). In opposition, the tractor-trailer defendants failed to raise a triable issue of fact. The tractor-trailer defendants’ remaining contentions are either improperly raised for the first time on appeal or without merit.
CONNOLLY, J.P., IANNACCI, GENOVESI and TAYLOR, JJ., concur.