| Ciminello v Sullivan |
| 2009 NY Slip Op 06396 [65 AD3d 1002] |
| September 8, 2009 |
| Appellate Division, Second Department |
| George A. Ciminello, Appellant-Respondent, v Brian C.Sullivan et al., Respondents, and Robert Hartford,Respondent-Appellant. |
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John G. Griffin, Dix Hills, N.Y. (Susan R. Nudelman of counsel), for respondent-appellant. Breen & Clancy, Hauppauge, N.Y. (Michael T. Clancy and Anne Marie Caradonna ofcounsel), for respondents Brian C. Sullivan and Gerard E. Sullivan.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), datedMarch 17, 2008, as granted that branch of the motion of the defendants Brian C. Sullivan andGerard E. Sullivan which was for summary judgment dismissing the complaint insofar asasserted against Gerard E. Sullivan and denied, as academic, that branch of his cross motionwhich was for summary judgment on the issue of liability, and the defendant Robert Hartfordcross-appeals, as limited by his brief, from so much of the same order as, sua sponte, in effect,granted the plaintiff leave to serve and file an amended complaint, and granted that branch of theplaintiff's cross motion which was for leave to amend the bill of particulars.
Ordered that on the Court's own motion, the defendant Robert Hartford's notice of crossappeal from so much of the order as, sua sponte, in effect, granted the plaintiff leave to serve andfile an amended complaint is treated as an application for leave to cross appeal from that portionof the order, and leave to cross appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
In September 2005 the plaintiff George A. Ciminello commenced this action to recoverdamages for injuries allegedly sustained after he was struck by a cup thrown from a movingvehicle owned by the defendant Gerard E. Sullivan and operated by the defendant Brian C.Sullivan (hereinafter together the Sullivan defendants), in which the defendant Robert Hartfordwas a passenger. The single cause of action interposed against the defendants was to recoverdamages for negligence. After the completion of discovery and the filing of the note of issue, theSullivan defendants moved for summary judgment dismissing the complaint insofar as assertedagainst them [*2]and the plaintiff cross-moved for summaryjudgment on the issue of liability and for leave to amend the bill of particulars.
The Supreme Court granted that branch of the motion which was for summary judgmentdismissing the complaint insofar as asserted against Gerard E. Sullivan, but denied the branch ofthe motion which was for summary judgment dismissing the complaint insofar as assertedagainst Brian C. Sullivan. The court denied that branch of the plaintiff's cross motion which wasfor summary judgment on the issue of liability, finding that the injuries resulted from intentionalrather than negligent conduct. The court, sua sponte, in effect, granted the plaintiff leave to serveand file an amended complaint. Finally, the court granted that branch of the plaintiff's crossmotion which was for leave to amend the bill of particulars.
The Supreme Court properly granted the branch of the Sullivan defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against Gerard E.Sullivan. To establish liability pursuant to Vehicle and Traffic Law § 388 (1), the plaintiffmust show negligence in the use or operation of the vehicle, and that the negligence was a causeof the injury (see Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 562[1999]). Here, the plaintiff's injury was caused by the throwing of the cup and did not arise out ofthe use or operation of the vehicle (see Levitt v Peluso, 168 Misc 2d 239, 245-246[1995]; see also Empire Ins. Co. v Schliessman, 306 AD2d 512 [2003]; ProgressiveCas. Ins. Co. v Yodice, 276 AD2d 540 [2000]; Eagle Ins. Co. v Butts, 269 AD2d558 [2000]).
The Supreme Court properly denied that branch of the plaintiff's cross motion which was forsummary judgment on the issue of liability. Based upon the evidence submitted to the SupremeCourt, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of lawon the cause of action alleging negligence against Brian C. Sullivan and Robert Hartford (seeThomas v Fayee, 302 AD2d 451 [2003]). Once intentional offensive contact has beenestablished, the actor is liable for battery, not negligence (see Siegell v Herricks Union Free School Dist., 7 AD3d 607, 609[2004]; Yasuna v Big V Supermarkets, 282 AD2d 744 [2001]; Panzella v Burns,169 AD2d 824, 825 [1991]).
Under the circumstances of this case, the Supreme Court providently exercised its discretionby, sua sponte, in effect, granting the plaintiff leave to serve and file an amended complaint (see Bennardi & Assoc., Inc. v RamsonsOne, Inc., 8 AD3d 948 [2004]; see also Barraza v Sambade, 212 AD2d 655[1995]). Moreover, the Supreme Court providently exercised its discretion in granting the branchof the plaintiff's cross motion which was for leave to amend the bill of particulars (see Ito v 324 E. 9th St. Corp., 49AD3d 816 [2008]; Grande vPeteroy, 39 AD3d 590 [2007]; Singh v Rosenberg, 32 AD3d 840 [2006]).
In light of our determination, we need not address the plaintiff's remaining contention(see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).Hartford's remaining contention on his cross appeal is not properly before us, as it is improperlyraised for the first time on the cross appeal (see Abrams v Abrams, 57 AD3d 809 [2008]; Padro vBertelsman Music Group, 278 AD2d 61 [2000]). Skelos, J.P., Florio, Leventhal and Hall,JJ., concur. [See 2008 NY Slip Op 30911(U).]