ASHLEY BENZ PLAINTIFF RESPONDENT v. JOHN SZCZEPANSKI AND FITZPATRICK DEFENDANTS APPELLANTS (2018)

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

ASHLEY BENZ, PLAINTIFF–RESPONDENT, v. JEAN CALDER, ET AL., DEFENDANTS, JOHN M. SZCZEPANSKI AND M.G. FITZPATRICK, DEFENDANTS–APPELLANTS.

CA 17–01263

Decided: February 09, 2018

PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND CURRAN, JJ.

MCCABE, COLLINS, MCGEOUGH, FOWLER, LEVINE & NOGAN, LLP, HAMBURG (TAMARA M. HARBOLD OF COUNSEL), FOR DEFENDANT–APPELLANT JOHN M. SZCZEPANSKI. BOUVIER LAW, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT–APPELLANT M.G. FITZPATRICK. DIXON & HAMILTON, LLP, GETZVILLE (DENNIS P. HAMILTON OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries that she allegedly sustained in a multivehicle accident. We conclude that Supreme Court properly denied the respective motions of John M. Szczepanski and M.G. Fitzpatrick (defendants) for summary judgment dismissing the complaint against them. Although defendants met their initial burdens of establishing as a matter of law that plaintiff's negligence in rear-ending Fitzpatrick's vehicle was the sole proximate cause of the accident (see Johnson v. Curry, 155 AD3d 1601, 1601 [4th Dept 2017] ), plaintiff raised an issue of fact by submitting evidence of a nonnegligent explanation for the accident, i.e., the sudden stop of the vehicles operated by defendants (see Borowski v. Ptak, 107 AD3d 1498, 1499 [4th Dept 2013]; Colonna v. Suarez, 278 A.D.2d 355, 355 [2d Dept 2000] ).

Finally, Szczepanski's contention regarding the emergency doctrine is raised for the first time on appeal and is therefore not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985 [4th Dept 1994] ).

Mark W. Bennett

Clerk of the Court

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