Peters v. City of New York11/23/2004
Peters' negligence in the operation and control of his vehicle. Cowan contends that Peters' negligence in the first accident was a substantial contributing factor to the second accident, which occurred as a result of Peters' disabled vehicle's presence in the roadway. Cowan asserts that a natural and foreseeable consequence of a vehicle stopped in the middle of a roadway is that another vehicle would crash into it. She argues that the question of whether the intervening negligence of Church-Ford in striking Peters' disabled vehicle should relieve Peters, as the initial tortfeasor, of liability is, therefore, one of fact for a jury to decide.
Cowan's argument is rejected. Although, in general, the issue of proximate cause is for a jury to determine (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Sorrentino v Wild, 224 AD2d 607, 607 ), "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, 302 AD2d at 489; see also Whitehead, 304 AD2d at 755; Siegel v Boedigheimer, 294 AD2d 560, 562 ; Connolli, 285 AD2d at 864-865).
Here, Cowan concedes that Peters' vehicle was disabled and Peters (who was in a stretcher) could not, at the time of Cowan's accident, move his vehicle off the highway (compare Ricchiazzi v Gray, 5 AD3d 1085, 1086 ). As discussed above, Church-Ford testified at his deposition that he observed the accident scene from a block away. Thus, the independent act of Church-Ford, in striking Peters' vehicle, caused Peters' vehicle to propel into the ambulance, which then struck Cowan, and caused Cowan's accident (see Siegel, 294 AD2d at 562). The placement of Peters' vehicle in the roadway did not proximately cause Cowan's accident, but merely furnished the condition or occasion for it (see Whitehead, 304 AD2d at 754-755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Therefore, Peters' motion for summary judgment dismissing Cowan's complaint as against him in action # 2 must be granted (see CPLR 3212 ).
Ahmed, in support of his cross motion for summary judgment insofar as it seeks dismissal of Peters' complaint as against him in action # 1, relies upon Peters' deposition testimony that due to his injuries, he has no recollection of the day of the accident. Ahmed contends that, therefore, there is no evidence of negligence against him, and that Peters' complaint as against him in action # 1 must be dismissed.
Ahmed's contention is devoid of merit. A defendant moving for summary judgment must make a "prima facie showing of his or her entitlement to judgment as a matter of law, tendering sufficient [non-hearsay] evidence to eliminate any material issues of fact" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; see also Gaetano Marzotto & Figli S.P.A. v Filene's Basement, 213 AD2d 591, 591 ; Greenberg v Green, 197 AD2d 502, 502 ). A defendant ought not be considered to have established a prima facie right to judgment as a matter of law simply by criticizing the plaintiff's case, but must adduce affirmative evidence of his or her entitlement to such relief (Torres v Industrial Container, 305 AD2d 136, 136 ; Peskin v New York City Tr. Auth., 304 AD2d 634, 634 ). Regardless of the sufficiency of the opposing papers, the absence of sufficient admissible evidence to eliminate any material issues of fact precludes an award of summary judgment (Greenidge v HRH Constr. Corp., 279 AD2d 400, 402 ).
In the case at bar, no affidavit has been submitted by Ahmed, and Ahmed has not appeared for deposition. Ahmed supports his cross motion for summary judgment only with his attorney's affirmation. The affirmation of Ahmed's attorney, who lac
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