Serrano v. Gilray

2017 NY Slip Op 5523, 152 A.D.3d 1164, 58 N.Y.S.3d 817

Opinions

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered April 4, 2016. The order granted the motion of defendant Marcy A. Sheehan for summary judgment dismissing the complaint against her.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: On April 1, 2013, plaintiff was one of three passengers in a vehicle operated by defendant Marcy A. Sheehan. Sometime between 10:30 p.m. and 11:00 p.m., Sheehan lost control of her vehicle and struck a concrete barrier. All of the occupants exited the vehicle and walked to a grassy area off of the roadway. Plaintiff then returned to the vehicle to retrieve his cell phone. Shortly thereafter, as plaintiff was returning to the grassy area, Sheehan’s vehicle was struck by a vehicle operated by nonparty Chelsie Bertrand. Following that collision, plaintiff returned to the area where the two vehicles were situated, and the police arrived. Soon after the arrival of the police, plaintiff sustained personal injuries when he was struck by a vehicle operated by defendant Thomas A. Gilray, Jr. Thereafter, Gilray failed three field sobriety tests and, at 1:35 a.m. on April 2, 2013, his blood alcohol level was recorded as .127%. Earlier in the evening of April 1, 2013, Gilray had attended an event at defendant Corpus Christi Church (CCC), where alcohol was served. Plaintiff commenced the within action against, inter alia, Sheehan and CCC, alleging that he sustained injuries as a result of the multivehicle accident. Plaintiff further alleged that CCC was responsible for his injuries inasmuch as it sold and/or provided alcohol to Gilray, in violation of General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65, while Gilray was visibly intoxicated. CCC moved for summary judgment seeking dismissal of the complaint and any cross claims against it, and Sheehan filed a separate motion for summary judgment seek ing similar relief with respect to herself. Supreme Court granted each motion, and plaintiff appealed with respect to the relief granted to CCC and to Sheehan. During the pendency of this appeal, we were advised that plaintiff and CCC agreed to settle the action against CCC. We affirm the order granting Sheehan’s motion.

We note at the outset that plaintiff does not challenge the court’s determination that he made no claim of sustaining an injury in the initial accident when Sheehan lost control of her vehicle and struck a barrier. We therefore conclude that plaintiff abandoned any contention with respect to that determination (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]).

Contrary to plaintiff’s contention, the court properly granted Sheehan’s motion. Sheehan’s negligence, if any, “ ‘did nothing more than to furnish the condition or give rise to the occasion by which [plaintiff’s] injury was made possible and which was brought about by the intervention of a new, independent and efficient cause’” (Barnes v Fix, 63 AD3d 1515, 1516 [2009], lv denied 13 NY3d 716 [2010]; see Gregware v City of New York, 94 AD3d 470, 470 [2012]; Mikelinich v Giovannetti, 239 AD2d 471, 472 [1997]). Prior to the Gilray accident, the situation resulting from the first accident “was a static, completed occurrence” with plaintiff and all of the passengers of Sheehan’s vehicle safely off the roadway (Hallett v Akintola, 178 AD2d 744, 744 [1991]). The Gilray accident arose from a “new and independent cause and not as [the] consequence of [Sheehan’s] original act[ ]” (id- at 745). “The risk undertaken by plaintiff” in returning to the roadway was created by himself (Gralton v Oliver, 277 App Div 449, 452 [1950], affd 302 NY 864 [1951]).

In our view, the dissent’s reliance on Hain v Jamison (28 NY3d 524, 532 [2016]) is misplaced inasmuch as the Court of Appeals, citing Gralton, acknowledged that “proximate cause has been found lacking, as a matter of law, where a defendant negligently caused a vehicular accident, but the first accident was completed and the plaintiff was in a position of safety when a secondary accident occurred” (id.). Here, plaintiff returned to the roadway from a position of safety not once, but twice.

All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following memorandum.