| Moore v Gottlieb |
| 2007 NY Slip Op 10119 [46 AD3d 775] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Harold Moore et al., Respondents, v Joseph Gottlieb et al.,Appellants, et al., Defendant. |
—[*1] Joan Iacono and John Barone, Bronxville, N.Y., for respondents (one brief filed). Bonacic, Krahulik & Associates, LLP, Middletown, N.Y. (Langdon C. Chapman of counsel),for defendant John Bernas.
In an action to recover damages for trespass, negligence, and nuisance, the defendants JosephGottlieb and Monticello Blacktop Corp. appeal, as limited by their brief, from so much of anorder of the Supreme Court, Orange County (Alessandro, J.), dated September 5, 2006, as deniedthat branch of their motion which was for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondentspayable by the appellants.
Contrary to the appellants' contention, they failed to demonstrate their prima facieentitlement to judgment as a matter of law dismissing the complaint insofar as asserted againstthem. For a loss to be considered the result of an act of God, human activities cannot havecontributed to the loss in any degree (see Cangialosi v Hallen Constr. Corp., 282 AD2d565, 566 [2001]). It cannot be determined at this juncture if the damage to the plaintiffs' propertywas a consequence of negligence or an act of God (see Fulgum v Town of Cortlandt, 2 AD3d 775, 777 [2003];Zeltmann v Town of Islip, 265 AD2d 407, 408 [1999]). "Proximate cause is a juryquestion" (Nowlin v City of New York, 81 NY2d 81, [*2]89 [1993]). Accordingly, the Supreme Court properly denied themotion for summary judgment, regardless of the sufficiency of the plaintiffs' opposition (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Crane, J.P., Rivera,Angiolillo and Dickerson, JJ., concur.