GRAZIADEI v. Delaware Court, Inc., Donald Denz and Kenneth Fiebelkorn, Individually and as Partners Doing Business as Delaware Court, Defendants-Appellants. (2005)

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when an unaffixed concrete parking barrier owned and maintained by Delaware Court, Inc., Donald Denz and Kenneth Fiebelkorn, individually and as partners doing business as Delaware Court (collectively, Delaware Court defendants), fell on him after allegedly being struck by a vehicle driven by defendant Munawar A. Ahmed.   Supreme Court properly denied the cross motion of the Delaware Court defendants for summary judgment dismissing the amended complaint against them.   Those defendants “failed to demonstrate that under no view of the facts could [they] be found negligent in the happening of the accident․ Nor can it be determined, as a matter of law, that [Ahmed's conduct] was an intervening act that was a superseding cause of [plaintiff's] injuries” (Ortiz v. Pina, 298 A.D.2d 509, 510, 748 N.Y.S.2d 657;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Viewing the evidence in the light most favorable to the nonmoving parties, as we must (see Russo v. YMCA of Greater Buffalo, 12 A.D.3d 1089, 784 N.Y.S.2d 782, lv. dismissed 5 N.Y.3d 746, 800 N.Y.S.2d 376, 833 N.E.2d 711), and given the divergent views of the manner in which the accident occurred (see generally Daly v. City of New York, 235 A.D.2d 249, 652 N.Y.S.2d 25;  Accardi v. City of New York, 121 A.D.2d 489, 490-491, 503 N.Y.S.2d 818), we conclude that there is an issue of fact whether Ahmed's conduct constituted a superseding intervening cause of the accident that was not “a normal or foreseeable consequence of the situation created by the ․ [alleged] negligence” of the Delaware Court defendants (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010;  see generally Pomeroy v. Buccina, 289 A.D.2d 944, 945, 735 N.Y.S.2d 678).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: