| Paul v Cooper |
| 2007 NY Slip Op 09299 [45 AD3d 1485] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Virginia S. Paul, Appellant, v David G. Cooper, as Administrator ofthe Estate of Ernest R. Cooper, Deceased, Defendant, and United Refining Holdings, Inc., DoingBusiness as Kwik Fill Gas Station, et al., Respondents. |
—[*1] Walsh & Wilkins, Buffalo (Jill Tuholski of counsel), for defendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), enteredMay 23, 2006 in a personal injury action. The order, insofar as appealed from, granted that partof the motion of defendants United Refining Holdings, Inc., doing business as Kwik Fill GasStation, United Refining Company of Pennsylvania, United Refining Co., and United Refining,Inc. for summary judgment dismissing the complaint against them.
It is hereby ordered that the order insofar as appealed from be and the same hereby isunanimously reversed on the law without costs, the motion is denied in part and the complaintagainst defendants United Refining Holdings, Inc., doing business as Kwik Fill Gas Station,United Refining Company of Pennsylvania, United Refining Co., and United Refining, Inc. isreinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she was struck by a motor vehicle operated by Ernest R. Cooper (decedent). At the time ofthe accident, plaintiff's vehicle was parked in front of a Kwik Fill Gas Station, owned andoperated by defendants-respondents (defendants), and plaintiff was putting air into one of thetires. Decedent struck plaintiff as he was backing out of an alley located on the side of thebuilding where the air pump was attached. In her complaint, plaintiff alleged that defendantswere negligent in, inter alia, "permitting a dangerous and defective condition to exist; in failingto warn [her] of said dangerous and defective condition; in failing to properly maintain the. . . parking lot; in failing to properly and safely lay out and mark the. . . parking lot; [and] in placing the air pump in an improper and unsafe locationupon said premises." We conclude that Supreme Court erred in granting that part of the motionof defendants for summary judgment seeking dismissal of plaintiff's "claims" against them.
Contrary to the contention of defendants, plaintiff may contend for the first time on appealthat they failed to meet their initial burden on the motion inasmuch as plaintiff is raising [*2]an issue of law that "could not have been avoided by [defendants] ifbrought to [their] attention in a timely manner" (Oram v Capone, 206 AD2d 839, 840[1994]). It is well established that the failure of a party to meet its initial burden necessitatesdenial of the motion "regardless of the sufficiency of the opposing papers" (Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendants' reply papers could not serveto supplement their initial moving papers inasmuch as it is well established that " '[t]he functionof [reply papers] is to address arguments made in opposition to the position taken by themovant[s] and not to permit [them] to introduce new arguments in support of the motion' " (Seefeldt v Johnson, 13 AD3d1203, 1203-1204 [2004]).
On the merits, we conclude that defendants failed to meet their initial burden of establishingtheir entitlement to judgment as a matter of law. To the extent that they contended that theparking lot was not improperly designed and that the air pump was not negligently placed, weconclude that they failed to meet their initial burden on the motion by submitting the affidavit ofdefendants' expert. First, the expert indicated in his affidavit only that he is a professionalengineer, "but no further information was offered to establish any specialized knowledge,experience, training, or education" with respect to the relevant subject matter (Hofmann vToys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see O'Boy v Motor Coach Indus., Inc.,39 AD3d 512, 513-514 [2007];Rosen v Tanning Loft, 16 AD3d 480 [2005]). Second, defendants' expert based hisconclusions and opinion on a document that was "not established as authoritative with respect tothe standard of care" in the field (Jonesv County of Niagara, 15 AD3d 1002, 1004 [2005]; see also Merino v New York CityTr. Auth., 89 NY2d 824 [1996]).
To the extent that defendants contended in support of their motion that the sole proximatecause of the accident was decedent's negligent driving and that the accident was not reasonablyforeseeable, we further conclude that defendants failed to meet their initial burden. "Questionsconcerning foreseeability and proximate cause are generally questions for the jury" (Peevey vBurgess, 192 AD2d 1115, 1116 [1993]; see Palka v Servicemaster Mgt. Servs. Corp.,83 NY2d 579, 585 [1994]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980],rearg denied 52 NY2d 784, 829 [1980]; Little v City of Syracuse [appeal No. 4],258 AD2d 899 [1999]). Based on the submissions of defendants, we conclude that there areissues of fact whether the allegedly defective design of the parking lot and the allegedly negligentplacement of the air pump were proximate causes of the accident and whether the accident itselfwas foreseeable (see e.g. Fuller vMarcello, 17 AD3d 1017, 1018-1019 [2005]; Phelan v Ferello, 207 AD2d 874[1994]; Arena v Ostrin, 134 AD2d 306 [1987]; cf. Pizzimenti v Henn, 16 AD3d 1070, 1072 [2005], lvdenied 5 NY3d 713 [2005]; Grandy v Bavaro, 134 AD2d 957, 958 [1987], lvdenied 71 NY2d 802 [1988]).
Based on our determination, we do not address plaintiff's remaining contention.Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.