Liquori v. Brown

172 A.D.3d 1354

101 N.Y.S.3d 147

Robert S. LIQUORI, Jr., et al., Plaintiffs-Appellants,

v.James F. BROWN, et al., Defendants Third-Party Plaintiffs-Appellants,Huntington Plumbing Supply, Co., Inc., Defendant Third-Party Defendant-Respondent.

2018–03283

Index No. 2393/16

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

Argued—February 19, 2019

May 29, 2019

Rand P. Schwartz, Massapequa Park, NY, for plaintiffs-appellants.

Mazzara & Small, P.C., Bohemia, N.Y. (Timothy F. Mazzara of counsel), for defendants third-party plaintiffs-appellants.

McCarthy & Associates, Melville, N.Y. (John A. Canton of counsel), for defendant third-party defendant-respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs.

On March 30, 2015, at approximately 8:48 a.m., the plaintiff Robert S. Liquori, Jr. (hereinafter the injured plaintiff), who was a pedestrian at the time, was struck by a vehicle owned by the defendant third-party plaintiff Harbor Landscaping Home Maintenance, Inc. (hereinafter Harbor), and operated by the defendant third-party plaintiff James F. Brown. The vehicle was backing into a loading dock in the parking lot of premises owned and operated by the defendant third-party defendant Huntington Plumbing Supply, Co., Inc. (hereinafter Huntington Plumbing). The injured plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries, alleging that Brown and Harbor were negligent in, among other things, the ownership and operation of their vehicle, and that Huntington Plumbing was negligent in, among other things, the design and maintenance of the parking lot. Huntington Plumbing originally was brought into the action via a third-party action commenced against it by Brown and Harbor. Huntington Plumbing moved for summary judgment dismissing the amended complaint, the third-party complaint, and all cross claims insofar as asserted against it. The Supreme Court granted the motion. Brown and Harbor appeal from so much of the order as granted those branches of Huntington Plumbing's motion which were for summary judgment dismissing the third-party complaint and all cross claims asserted against it. The plaintiffs separately appeal from so much of the order as granted that branch of Huntington Plumbing's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.

To sustain the burden of proving a prima facie case of proximate cause, "the plaintiff in a negligence action ‘must generally show that the defendant's negligence was a substantial cause of the events which produced the injury’ " ( Lapidus v. State of New York , 57 A.D.3d 83, 94, 866 N.Y.S.2d 711, quoting Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ). "Generally, it is for the trier of fact to determine the issue of proximate cause" ( Kalland v. Hungry Harbor Assoc., LLC , 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools , 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Scala v. Scala , 31 A.D.3d 423, 424, 818 N.Y.S.2d 151 ). Although the issue of proximate cause is generally one for the finder of fact (see Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ), "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" ( Ely v. Pierce , 302 A.D.2d 489, 489, 755 N.Y.S.2d 250 ; see Federico v. Defoe Corp. , 138 A.D.3d 682, 684, 29 N.Y.S.3d 454 ; Castillo v. Amjack Leasing Corp. , 84 A.D.3d 1298, 924 N.Y.S.2d 156 ).

Here, the only basis for liability against Huntington Plumbing is the allegation that the premises were improperly designed and maintained. The evidence submitted in support of Huntington Plumbing's motion, which included the...