Heaney v. Kahn

180 A.D.3d 1018

120 N.Y.S.3d 389

Jamie HEANEY, et al., Appellants,

v.Adam KAHN, Respondent.

2019–00778

Index No. 610843/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 24, 2019

February 26, 2020

Alan W. Clark & Associates, LLC, Westbury, NY, for appellants.

Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered December 26, 2018.

The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff Jamie Heaney (hereinafter the plaintiff) alleges she was operating a bicycle on a sidewalk when she collided with the defendant's vehicle, which was attempting to exit from a parking lot in Rockville Centre. The plaintiff, and her husband suing derivatively, commenced this action against the defendant. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint, and the plaintiffs appeal.

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526 ; see Gezelter v. Pecora, 129 A.D.3d 1021, 1021–1022, 13 N.Y.S.3d 141 ). "There can be more than one proximate cause of an accident" ( Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604 ; see Burnett v. Reisenauer, 107 A.D.3d 656, 967 N.Y.S.2d 105 ), and the issue of proximate cause is generally one for the jury (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314–315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ; Liquori v. Brown, 172 A.D.3d 1354, 1355, 101 N.Y.S.3d 147 ). Here, the defendant's vehicle had pulled out from a parking lot and came to a stop immediately prior to the impact. The defendant failed to establish, prima facie, that the presence of his vehicle on the sidewalk merely furnished the condition or occasion for the occurrence of the event but was not one of its causes (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 ).

Accordingly, the Supreme...