Campbell v Central N.Y. Regional Transp. Auth.

2006 NY Slip Op 06377 [7 NY3d 819]

September 12, 2006

Court of Appeals

As corrected through Wednesday, November 08, 2006

[*1]

Joseph Campbell, Respondent, v Central New York Regional Transportation Authority, Appellant.

Decided September 12, 2006

Campbell v Central N.Y. Regional Transp. Auth., 28 AD3d 1083, reversed.

APPEARANCES OF COUNSEL

Mackenzie Hughes LLP, Syracuse (W. Bradley Hunt of counsel), for appellant.

James B. Fleckenstein, Syracuse, for respondent.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and [*2]defendant's motion for summary judgment dismissing the personal injury claim granted. The certified question should be answered in the negative.

Although the issue of proximate cause is ordinarily for the factfinder to resolve, defendant established that the ill-fitting replacement wheelchair provided by a third party constituted{**7 NY3d at 821} an independent intervening occurrence which operated upon, but did not flow from, the original negligence (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see also Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 951 [1978], mot to amend remittitur granted 46 NY2d 771 [1978]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.