Opinion
2014-02-5
Tyrone LITTLES, appellant, v. YORKSHIRE BUSINESS CORP., et al., defendants, Frito–Lay, Inc., respondent.
Andrew R. Miller, Brooklyn, N.Y., for appellant. The Law Offices of Richard DaVolio, P.C., Sayville, N.Y., for respondent.
Andrew R. Miller, Brooklyn, N.Y., for appellant. The Law Offices of Richard DaVolio, P.C., Sayville, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated March 6, 2012, as granted that branch of the motion of the defendant Frito–Lay, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contentions, the Supreme Court correctly granted that branch of the motion of the defendant Frito–Lay, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it. Although the issue of proximate cause is generally one for the jury ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314–315, 434 N.Y.S.2d 166, 414 N.E.2d 666), liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of an event, but was not one of its causes ( see Castillo v. Amjack Leasing Corp., 84 A.D.3d 1298, 924 N.Y.S.2d 156; Wechter v. Kelner, 40 A.D.3d 747, 835 N.Y.S.2d 653; Saviano v. City of New York, 5 A.D.3d 581, 774 N.Y.S.2d 82; Williams v. Envelope Tr. Corp., 186 A.D.2d 797, 798, 589 N.Y.S.2d 345). Here, Frito–Lay, Inc., demonstrated its prima facie entitlement to judgment as a matter of law by presenting evidentiary proof that the location of its parked truck at the time of the subject accident merely furnished the condition or occasion for the subject accident, and was not a proximate cause of the plaintiff's injuries ( see Wechter v. Kelner, 40 A.D.3d at 747, 835 N.Y.S.2d 653; Haylett v. New York City Tr. Auth., 251 A.D.2d 373, 374, 674 N.Y.S.2d 75; Williams v. Envelope Tr. Corp., 186 A.D.2d at 797, 589 N.Y.S.2d 345). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert was insufficient to raise a triable issue of fact, as it was conclusory and speculative ( see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68; Courtney v. Port Auth. of N.Y. & N.J., 34 A.D.3d 716, 827 N.Y.S.2d 79). SKELOS, J.P., DILLON, HALL and ROMAN, JJ., concur.