Opinion
1028 CA 19–00828
11-08-2019
DANIELLE H., Individually, and as Parent and Natural Guardian of C.H., an Infant, Plaintiff–Appellant, v. Joseph MANNARINO, Defendant, Antique World & Flea Market, Antique World, LLC, and Kelly Schultz, Defendants–Respondents.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–APPELLANT. GERBER CIANO KELLY BRADY LLP, BUFFALO (BRIAN R. BIGGIE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF–APPELLANT.
GERBER CIANO KELLY BRADY LLP, BUFFALO (BRIAN R. BIGGIE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint against defendants-respondents is reinstated.
Memorandum: Plaintiff commenced this action to recover damages for injuries sustained by her son when he was struck by a vehicle at a flea market owned and operated by defendants-respondents (defendants). Plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the complaint against them on the ground that their conduct was not, as a matter of law, a proximate cause of the accident. We reverse.
Even assuming, arguendo, that defendants met their initial burden on the motion, we agree with plaintiff that she raised a triable issue of fact with respect to proximate cause, specifically whether defendants' alleged failure to enforce their policy regarding the authorized proximity of goods for sale to the roadway or defendants' alleged failure to deploy orange cones to prevent vehicles from entering the roadway constituted a proximate cause of the accident (see Pineiro v. Rush, 163 A.D.3d 1097, 1098–1099, 81 N.Y.S.3d 286 [3d Dept. 2018] ; see generally Turturro v. City of New York, 28 N.Y.3d 469, 483–484, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ). We do not address plaintiff's contentions regarding the potential existence and breach of defendants' duty of care because defendants never sought summary judgment on those grounds (see generally McSorley v. Tripoli, 284 A.D.2d 900, 901, 725 N.Y.S.2d 918 [4th Dept. 2001] ).