Opinion
2002-01326
Argued February 6, 2003.
July 21, 2003.
In a consolidated action to recover damages for personal injuries and wrongful death and a related action for subrogation which were joined for trial, E.W.G. Container Company, a defendant in Action No. 1, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), dated January 4, 2002, as denied that branch of its cross motion, made jointly with James LeBlanc and Providence Washington Group, defendants in Action No. 2, which was for summary judgment dismissing the complaints and all cross claims insofar as asserted against it.
Torino Bernstein, P.C., Mineola, N.Y. (Kathleen Doherty of counsel), for appellant, and Provident Washington Insurance Co. and James LeBlanc, defendants in Action No. 2.
Richard M. Levy, Brooklyn, N.Y., plaintiff-respondent in Action No. 1 pro se and for Marta Ayala De Rivera, plaintiff-respondent in Action No. 1.
John T. Ryan Associates, Garden City, N.Y. (Thomas C. Awad of counsel), for Tele-Mechanics, Inc., defendant-respondent in Action No. 1, and Hartford Fire Insurance Company, a/s/o Telemechanics, Inc., plaintiff in Action No. 2.
Tell, Cheser Breitbart, LLP, New York, N.Y. (Alfred C. Polidore of counsel), for Middle Earth Limited Partnership and Mark H. Calem, defendants in Action No. 2.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellant to the plaintiffs-respondents and the defendant-respondent in Action No. 1 appearing separately and filing separate briefs.
The plaintiffs in Action No. 1 allege that they sustained injuries when the roof of a warehouse where they were working collapsed, about seven weeks after a truck owned by E.W.G. Container Company (hereinafter EWG), a defendant in Action No. 1, backed into a support column supporting the roof. Custom Weld Industries, a defendant in Action No. 1, was retained to install a temporary support column and to eventually permanently repair the damage. The permanent repairs were to take place on the date of the accident, but the roof collapsed before the permanent repairs were performed.
The Supreme Court properly denied that branch of the cross motion which was for summary judgment dismissing the complaints and all cross claims insofar as asserted against EWG in Action No. 1 because insufficient evidence was submitted to establish EWG's entitlement to judgment as a matter of law ( see Zuckerman v. City of New York, 49 N.Y.2d 557).
EWG breached a duty of care when its driver damaged the support column, which may have proximately caused the roof to collapse ( see generally Turcotte v. Fell, 68 N.Y.2d 432; Pulka v. Edelman, 40 N.Y.2d 781). Contrary to EWG's contention, it failed to establish that the temporary repairs, coupled with the passage of time, were superseding intervening acts that severed the causal link between its negligence and the roof collapse ( see Bell v. New York City Health Hosps. Corp., 90 A.D.2d 270, 285; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315; Dunn v. State of New York, 29 N.Y.2d 313, 318).
Since insufficient evidence was tendered demonstrating that the damage EWG caused to the support column did not affect the structural integrity of the roof, there is a triable issue of fact as to whether its negligence was a proximate cause of the roof collapse ( see Ostrowski v. Massa, 168 A.D.2d 964; Hassanein v. Avianca Airlines, 872 F. Supp. 1183). Moreover, although seven weeks elapsed from the time EWG damaged the support column and the time the roof collapsed, "a mere lapse of time, no matter how long is not sufficient to prevent [an actor's conduct] from being the legal cause of the other's harm" ( Hassanein v. Avianca Airlines, supra; see also Restatement [Second] of Torts § 433, comment f).
We note that any contentions raised on behalf of defendants in Action No. 2 Providence Washington Insurance Co. and James Le Blanc, as purported appellants, have not been considered because their contentions are not properly before the court ( see CPLR 5515).
SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur.