| Ingrassia v Lividikos |
| 2008 NY Slip Op 06800 [54 AD3d 721] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Leonard Ingrassia, Jr., Respondent, v DemosthenesLividikos et al., Respondents, and Arben Selmani, Defendant and Third-PartyPlaintiff-Respondent. Jennifer Rodriguez, Third-Party Defendant-Appellant. (Action No. 1.)GEICO General Insurance Company, Plaintiff, v Vasilis Lividikos et al., Defendants. (ActionNo. 2.) Leonard Ingrassia, Jr., Respondent, v Jennifer Rodriguez, Appellant. (Action No.3.) |
—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser andPaul R. Cordella of counsel), for plaintiff-respondent. Morris Duffy Alonso & Faley, LLP, New York, N.Y. (Anna J. Ervolina of counsel), fordefendants-respondents Demosthenes Lividikos and Vasilis Lividikos.
In three related actions, inter alia, to recover damages for wrongful death and conscious painand suffering, which were joined for trial, Jennifer Rodriguez appeals, as limited by her brief,from (1) so much of an order of the Supreme Court, Richmond County (McMahon, J.), datedFebruary 28, 2007, as denied her motion for summary judgment dismissing all claims and crossclaims insofar as asserted against her, and (2) so much of an order of the same court dated April17, 2007, as, upon reargument, adhered to the original determination.[*2]
Ordered that the appeal from the order dated February 28,2007, is dismissed, as the portion of the order appealed from was superseded by the order datedApril 17, 2007, made upon reargument; and it is further,
Ordered that the order dated April 17, 2007, is reversed insofar as appealed from, on the law,upon reargument, so much of the order dated February 28, 2007, as denied the appellant's motionfor summary judgment dismissing all claims and cross claims insofar as asserted against her isvacated, and the appellant's motion for summary judgment is granted; and it is further,
Ordered that the appellant is awarded one bill of costs payable by the plaintiff LeonardIngrassia, Jr., and the defendants Demosthenes Lividikos and Vasilis Lividikos appearingseparately and filing separate briefs.
On April 4, 2004, the decedent, Leonardo Ingrassia, III, was a passenger in a black PontiacBonneville driven by the defendant Rudy N. Cantarini. The appellant, Jennifer Rodriguez, wasdriving her mother's white Acura, with two girlfriends as passengers, including the defendantKatherine Lividikos. The Cantarini vehicle pulled up next to the appellant's vehicle, which wasstopped at a red light. The boys in the Cantarini vehicle yelled at the girls in the appellant'svehicle and threw objects at her car.
Katherine Lividikos called her brother, the defendant Demosthenes Lividikos, and asked himto come and say something so the boys would stop bothering them. While Katherine Lividikoswas on her cell phone with Demosthenes Lividikos, the appellant followed the Cantarini vehiclebecause "Kathy [Lividikos] said her brother was going to come and say something to them, tostop and whatever else."
Cantarini testified at his deposition that Demosthenes Lividikos's vehicle cut him off andforced him to stop. Demosthenes Lividikos and his passengers exited the vehicle. One of thosepassengers, Joe Milrud, swung a baseball bat at the side door of the Cantarini vehicle, shatteringthe rear window on the passenger side. The shattering glass struck the decedent's face. TheCantarini vehicle "took off" down Amboy Road at a high rate of speed. The Rodriguez andLividikos vehicles proceeded to a diner to get ice for Demosthenes Lividikos's hand, which wasred and bleeding. The diner was in the same direction as the Cantarini vehicle had traveled, butthe appellant did not see the Cantarini vehicle as she drove toward the diner. The Cantarinivehicle was subsequently involved in an accident in which the decedent was killed.
As a result of this incident, Joe Milrud was convicted upon his plea of guilty of assault in thethird degree, his copassenger Arben Selmani was convicted upon his plea of guilty of criminalpossession of a weapon in the fourth degree, and Demosthenes Lividikos was convicted upon hisplea of guilty of menacing in the third degree.
The decedent's father, the plaintiff Leonard Ingrassia, Jr. (hereinafter the plaintiff),commenced an action against the owner and driver of the Cantarini vehicle and the occupantsand owners of the Lividikos vehicle. Selmani commenced a third-party action against theappellant, claiming that her negligence was a proximate cause of the ensuing events, whichincluded his own criminal conduct. Over a year later, the plaintiff commenced a separate actionagainst the appellant alleging, inter alia, that she "solicited the assistance" of Selmani and theother occupants of the Lividikos vehicle. The appellant moved for summary judgment dismissingall claims and cross [*3]claims insofar as asserted against her.The Supreme Court denied her motion, finding that the appellant should have foreseen theconduct of the occupants of the Lividikos vehicle. The Supreme Court further found that therewas an issue of fact as to whether the appellant followed the Cantarini vehicle after thealtercation, causing Cantarini to speed. Upon reargument, the Supreme Court adhered to itsoriginal determination.
The allegations against the appellant sound in common-law negligence. The elements ofcommon-law negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach of thatduty, and (3) a showing that the breach of that duty constituted a proximate cause of the injury(see Akins v Glens Falls City School Dist., 53 NY2d 325 [1981]; Pulka v Edelman,40 NY2d 781 [1976]; Alvino v Lin, 300 AD2d 421 [2002]). The scope of the dutyowed by the defendant is defined by the risk of harm reasonably to be perceived (see Sanchezv State of New York, 99 NY2d 247, 252 [2002]).
"Where third-party criminal acts intervene between defendant's negligence and plaintiff'sinjuries, the causal connection may be severed, precluding liability" (Bell v Board of Educ. ofCity of N.Y., 90 NY2d 944, 946 [1997]; see Derdiarian v Felix Contr. Corp., 51NY2d 308, 315 [1980]; Bingham vLouco Realty, LLC, 36 AD3d 845, 845-846 [2007]). "An intervening act will be deemeda superseding cause and will serve to relieve defendant of liability when the act is of such anextraordinary nature or so attenuates defendant's negligence from the ultimate injury thatresponsibility for the injury may not be reasonably attributed to the defendant" (Kush v Cityof Buffalo, 59 NY2d 26, 33 [1983]; see Santiago v New York City Hous. Auth., 63NY2d 761, 763 [1984]). "While foreseeability is generally an issue for the fact finder, where onlyone conclusion can be drawn, proximate cause may be decided as a matter of law" (Bell vBoard of Educ. of City of N.Y., 90 NY2d 944, 946 [1997]).
On the question of foreseeability, the plaintiff relies on the appellant's testimony at herdeposition that she expected the occupants of the Lividikos vehicle to "say something" to theboys, and to tell them "to stop and whatever else." However, the record contains no evidence thatthe appellant solicited criminal acts or overheard Katherine Lividikos soliciting criminal acts, orthat the occupants of the Lividikos vehicle had a propensity for violence, or that it wasforeseeable that they would arrive with baseball bats. Under the circumstances, the interveningcriminal acts were extraordinary and unforeseeable as a matter of law and served to break thecausal connection between the appellant's conduct and the subsequent events (see Di Ponziov Riordan, 89 NY2d 578 [1997]; Santiago v New York City Hous. Auth., 63 NY2d761, 763 [1984]; Margolin v Friedman, 43 NY2d 982 [1978]; Jackson v Noel,299 AD2d 456 [2002]; Lewis v Jamesway Corp., 291 AD2d 533 [2002];Schrader v Board of Educ. of Taconic Hills Cent. School Dist., 249 AD2d 741 [1998];Jantzen v Edelman of N.Y., 206 AD2d 406 [1994]).
In opposition, the respondents failed to raise a triable issue of fact. Contrary to theirassertions, there was no evidence that the appellant engaged in improper conduct after the assaultby continuing to pursue the Cantarini vehicle.
Accordingly, the appellant was entitled to summary judgment. Prudenti, P.J., Miller, Carniand Chambers, JJ., concur. [See 14 Misc 3d 1236(A), 2007 NY Slip Op 50319(U).]