Shabazz v. Bronxville Garage & Service Corp.

300 A.D.2d 386, 750 N.Y.S.2d 782, 2002 N.Y. App. Div. LEXIS 11951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2002
• Status: Published

Opinion

—In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered May 1, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law by establishing that its conduct in selling the gasoline to Malcolm Shabazz, the 12-year-old grandson of the plaintiff’s decedent, was not a proximate cause of the decedent’s injuries and subsequent death (see generally Alvarez v Prospect Hosp., 68 NY2d 320).

In opposition to the defendant’s motion, the plaintiffs failed to raise a triable issue of fact that the defendant knew or should have known that Malcolm Shabazz would use the gasoline in an improper or dangerous fashion (see Troncoso v Home Depot, 258 AD2d 644; cf. Myers v 149 Automotive, 295 AD2d 104; Splawnik v Di Caprio, 146 AD2d 333, 336).

The plaintiffs’ remaining contentions are without merit. Santucci, J.P., Townes, Crane and Rivera, JJ., concur.