Opinion
2021-01292 Index No. 18866/15
08-16-2023
Stephen BIAMONTE, etc., respondent, v. Joseph BIAMONTE, appellant, et al., defendant.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Maria Caraballo–Mitra of counsel), for appellant. Patricia Byrne Blair, Blue Point, NY, for respondent.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Maria Caraballo–Mitra of counsel), for appellant.
Patricia Byrne Blair, Blue Point, NY, for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, the defendant Joseph Biamonte appeals from an order of the Supreme Court, Suffolk County (Stephen Braslow, J.), dated May 13, 2020. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Joseph Biamonte for summary judgment dismissing the complaint insofar as asserted against him is granted.
The plaintiff's decedent, Erika Michelle Strebel, was operating a vehicle owned by the defendant Joseph Biamonte (hereinafter the defendant) with his consent. The vehicle ran out of gas on Montauk Highway, a two-lane highway with a speed limit of 50 miles per hour. The decedent stopped the vehicle on the full asphalt shoulder, which was painted white at the subject location. The decedent was standing outside of the vehicle with a gas can when she was fatally struck by a pickup truck operated by a non-party, hit-and-run driver. In this action, the plaintiff alleged that the defendant knew that his vehicle had a malfunctioning gas gauge but nonetheless "allowed the decedent ... to borrow and use" the vehicle. The plaintiff further alleged that the defendant negligently failed to maintain the vehicle in proper working order and loaned the vehicle to the decedent while it was in a state of disrepair, and that this negligence caused the decedent's injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that it was not foreseeable that running out of gas would result in the decedent being struck by a hit-and-run driver, and that the defendant's alleged conduct was not a proximate cause of the accident. The Supreme Court denied the motion. The defendant appeals, and we reverse.
In support of his motion, the defendant established, prima facie, that his alleged negligence was not a proximate cause of the accident. Even assuming, arguendo, that permitting the decedent to borrow a vehicle with a malfunctioning gas gauge "furnished the condition or occasion" for the accident ( Estate of Morgana v. Staten Is. Hotel, 140 A.D.3d 1113, 1114, 35 N.Y.S.3d 193 ; see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 316, 434 N.Y.S.2d 166, 414 N.E.2d 666 ), under the circumstances here, a hit-and-run driver striking the decedent constituted an intervening act which was not foreseeable (see Martinez v. Lazaroff, 48 N.Y.2d 819, 820, 424 N.Y.S.2d 126, 399 N.E.2d 1148 ; Ventricelli v. Kinney Sys. Rent A Car, Inc., 45 N.Y.2d 950, 952, 411 N.Y.S.2d 555, 383 N.E.2d 1149 ; Siso v. Tawil, 2 A.D.3d 828, 829, 769 N.Y.S.2d 384 ; see also Andrade v. Zamora, 124 A.D.3d 570, 997 N.Y.S.2d 916 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's allegedly negligent conduct contributed to the happening of the accident (see Siso v. Tawil, 2 A.D.3d at 829, 769 N.Y.S.2d 384 ; Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 72, 588 N.Y.S.2d 607 ).
In light of our determination, it is not necessary to reach the parties' remaining contentions.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur.