Opinion
12-23-2016
Nicholas KILMER, Plaintiff–Appellant, v. David MASTROPIETRO, Individually and/or doing Business as Finger Lakes Transport, and David Baker, Defendants–Respondents.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for plaintiff-appellant. Costello, Cooney & Fearon, PLLC, Camillus (Shannon R. Becker of Counsel), for defendant-respondent David Mastropietro, Individually and/or doing Business as Finger Lakes Transport. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for defendant-respondent David Baker.
Appeal from an order of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered December 24, 2015. The order granted defendants' respective motion and cross motion for summary judgment dismissing the complaint against them.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for plaintiff-appellant.
Costello, Cooney & Fearon, PLLC, Camillus (Shannon R. Becker of Counsel), for defendant-respondent David Mastropietro, Individually and/or doing Business as Finger Lakes Transport.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen J. Krogman Daum of Counsel), for defendant-respondent David Baker.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he ran behind a rolling car in an attempt to stop it, and then was struck by the car when he slipped and fell. Contrary to plaintiff's contention, Supreme Court properly granted defendants' respective motion and cross motion for summary judgment dismissing the complaint against them. Although “[a]s a general rule, the question of proximate cause is to be decided by the finder of fact” (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 312, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010 ), “where[, as here,] a defendant's actions merely ‘furnish[ ] the condition or occasion’ for the events leading to a plaintiff's injuries, those actions will not be deemed a proximate cause of the injuries” (Hurlburt v. Noble Envtl. Power, LLC, 128 A.D.3d 1518, 1519, 9 N.Y.S.3d 509 ; see generally Sheehan v. City of New York, 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832 ). Here, even assuming, arguendo, that defendants' alleged negligence created the opportunity for the vehicle to begin rolling down the incline, we conclude that any such negligence did not cause plaintiff, who was in a safe position, to move behind it and attempt to stop it. “In short, the [alleged] negligence of [defendants] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated” (Derdiarian, 51 N.Y.2d at 316, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, and SCUDDER, JJ., concur.