TERRY v. DANISI FUEL OIL COMPANY INC

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

John TERRY, appellant, v. DANISI FUEL OIL COMPANY, INC., et al., respondents, et al., defendants

(and a third-party action).  (Action No. 1). Glenn Arthur Terry, appellant, v. Danisi Fuel Oil Company, Inc., et al., respondents, et al., defendants.  (Action No. 2).

Decided: May 29, 2007

REINALDO E. RIVERA, J.P., GLORIA GOLDSTEIN, MARK C. DILLON, and EDWARD D. CARNI, JJ. John L. Juliano, P.C., East Northport, N.Y., for appellant in Action No. 1. Cophen E. Sears III, Mount Sinai, N.Y., for appellant in Action No. 2. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Michael T. Reagan of counsel), for respondent Danisi Fuel Oil Company, Inc. Jacobson & Schwartz, Rockville Centre, N.Y. (Paul Goodovitch of counsel), for respondent Frederick L. Blase, Jr., d/b/a Blase Contracting.

In two related actions to recover damages for personal injuries, John Terry, the plaintiff in Action No. 1, and Glenn Arthur Terry, the plaintiff in Action No. 2, separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), entered March 2, 2006, as granted those branches of the separate motions of the defendants Danisi Fuel Oil Company, Inc., and Frederick L. Blase, Jr., d/b/a Blase Contracting, which were for summary judgment dismissing the respective complaints insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs, and those branches of the separate motions of the defendants Danisi Fuel Oil Company, Inc., and Frederick L. Blase, Jr., d/b/a Blase Contracting, which were for summary judgment dismissing the respective complaints insofar as asserted against them are denied.

 Generally, issues of proximate cause are to be decided by the finder of fact (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).   Moreover, “because the determination of legal causation turns upon questions of foreseeability and ‘what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve’ ” (Kriz v. Schum, 75 N.Y.2d 25, 34, 550 N.Y.S.2d 584, 549 N.E.2d 1155, quoting Derdiarian v. Felix Contr. Corp., supra at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  see Megally v. LaPorta, 253 A.D.2d 35, 43, 679 N.Y.S.2d 649).

 Here, the respondents failed to establish as a matter of law that the appellants' injuries were not a foreseeable consequence of the respondents' alleged negligence in installing an aquastat probe and in failing to install a mixing valve, or that their alleged negligence was not a proximate cause of the injuries (see Bingham v. Louco Realty, LLC, 36 A.D.3d 845, 829 N.Y.S.2d 194;  Gottlieb v. 31 Gramercy Park S. Owners Corp., 276 A.D.2d 417, 714 N.Y.S.2d 484;  Parker v. New York City Hous. Auth., 203 A.D.2d 345, 610 N.Y.S.2d 539;  Tirella v. American Props. Team, 145 A.D.2d 724, 535 N.Y.S.2d 252;  Daughtery v. City of New York, 137 A.D.2d 441, 524 N.Y.S.2d 703;  Muhaymin v. Negron, 86 A.D.2d 836, 447 N.Y.S.2d 457).   We find that the case of Rivera v. City of New York, 11 N.Y.2d 856, 227 N.Y.S.2d 676, 182 N.E.2d 284, is not controlling.   Accordingly, the Supreme Court should have denied those branches of the respondents' separate motions which were for summary judgment dismissing the respective complaints insofar as asserted against them.

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