Geralds v. Damiano

128 A.D.3d 550, 10 N.Y.S.3d 38

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2015
• Docket: 13257 156166/13
• Status: Published

Opinions

Order, Supreme Court, New York County (Geoffrey Wright, J.), entered October 31, 2013, as amended by order (same court and Justice), entered November 8, 2013, which denied plaintiffs motion for summary judgment and a trial preference, affirmed, without costs.

Plaintiff was injured when he was struck by a truck owned by defendant New York City Department of Sanitation and operated by defendant Salvatore Damiano. Plaintiff alleges that he stopped his vehicle on the side of the road at the Arden Avenue/Muldoon Avenue Exit Ramp off West Shore Expressway to inspect a hitch connecting a trailer he was hauling to the vehicle he was driving. Defendants’ vehicle rear-ended the trailer, pushing the trailer into plaintiff and his vehicle.

The record shows that there is conflicting evidence regarding whether plaintiff was stopped on the shoulder or in an active traffic lane, in violation of Rules of City of New York Department of Transportation (34 RCNY) § 4-08 (e) (1), and whether the hazard lights on the trailer were engaged.

* Under these circumstances, issues of fact exist regarding plaintiffs comparative negligence and whether his acts also proximately caused the accident. Because of these factual issues, summary judgment in plaintiffs favor is not warranted (see Maniscalco v New York City Tr. Auth., 95 AD3d 510, 511 [1st Dept 2012] [plaintiffs motion for summary judgment denied where record raises a triable issue as to plaintiffs comparative fault]; Calcano v Rodriguez, 91 AD3d 468, 468-469 [1st Dept 2012] [same]; White v Diaz, 49 AD3d 134, 137-140 [1st Dept 2008] [same]; Dowling v Consolidated Carriers Corp., 103 AD2d 675 [1st Dept 1984], affd 65 NY2d 799 [1985] [same]). As this Court noted in White v Diaz, issues of proximate cause are typically fact questions to be decided by a jury and are only appropriately decided on summary judgment “ ‘where only one conclusion may be drawn from the established facts’ ” (49 AD3d at 139, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). This was the case in Sheehan v City of New York (40 NY2d 496 [1976]), where the Court of Appeals concluded, as a matter of law, that the conceded negligence of a sanitation truck with faulty brakes, which rear-ended a bus, was the sole proximate cause of the plaintiffs injuries, and that the location of the bus merely furnished the condition or occasion for the occurrence of the event, rather than one of its causes. As the Court held, the scenario in Sheehan was “singularly appropriate for the exercise of the trial court’s screening function since there [wa]s so little factual controversy” (id. at 502). That is not the case here.

The motion court properly denied plaintiffs request for a trial preference, since he has not submitted any proof supporting his claims of destitution and inability to work (see Roman v Sullivan Paramedicine, Inc., 101 AD3d 443 [1st Dept 2012]; Smith v Horn Constr. Co., 12 AD2d 739 [1st Dept 1961]).

We have considered the parties’ remaining arguments and find them unavailing. Concur — Tom, J.P., Renwick, Richter and Kapnick, JJ.

Contrary to the dissent’s position, we find that the conflicting testimony and photographs, which go to whether plaintiff was stopped in the shoulder or in the active driving lane, are best left to be resolved by the trier of fact.