MARMOL v. PINA CONSTRUCTION CORP (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Sanford N. Berland, J.), dated June 23, 2020.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured while moving a plastic storage tote containing rain water that had accumulated from a leak in the roof of the pharmacy where he was employed.  The plaintiff commenced this personal injury action against the defendant, the property owner, asserting, inter alia, a cause of action for common-law negligence.  The defendant moved for summary judgment dismissing the complaint.  The Supreme Court denied the motion, and the defendant appeals.

The defendant argues that any negligence on its part was not the proximate cause of the plaintiff's accident.  “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 Davidoff v. First Dev. Corp., 148 A.D.3d 773, 775, 48 N.Y.S.3d 755).  Additionally, there may be more than one proximate cause of a plaintiff's accident (see Reyes v. S. Nicolia & Sons Realty Corp., 212 A.D.3d 851, 852, 183 N.Y.S.3d 471;  Martino v. Patmar Props., Inc., 123 A.D.3d 890, 892, 999 N.Y.S.2d 449).  Here, the defendant's submissions, including a transcript of the plaintiff's deposition testimony, failed to establish, prima facie, that the alleged dangerous condition of the leaking roof was not a proximate cause of the plaintiff's accident (see Davidoff v. First Dev. Corp., 148 A.D.3d at 775, 48 N.Y.S.3d 755;  Bush v. Mechanicville Warehouse Corp., 69 A.D.3d 1207, 1209, 895 N.Y.S.2d 212;  see also Molberger v. D & F Realty of Westchester Corp., 269 A.D.2d 372, 373, 702 N.Y.S.2d 563;  Jackson v. New York City Hous. Auth., 214 A.D.2d 605, 606, 624 N.Y.S.2d 720).  Further, contrary to the defendant's contention, it failed to establish, prima facie, that the plaintiff was injured by a condition he was responsible for repairing (see Mejias v. City of New York, 183 A.D.3d 886, 888, 125 N.Y.S.3d 112;  Torres v. Board of Educ. of the City of N.Y., 175 A.D.3d 1584, 1586, 109 N.Y.S.3d 346;  Arcabascio v. Bentivegna, 142 A.D.3d 1120, 1121, 38 N.Y.S.3d 72).

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

CONNOLLY, J.P., MALTESE, ZAYAS and TAYLOR, JJ., concur.