| Iqbal v Thai |
| 2011 NY Slip Op 03210 [83 AD3d 897] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Shaheena Iqbal et al., Respondents, v David Thai et al.,Appellants. |
—[*1] Paul Ajlouny & Associates, P.C., Garden City, N.Y. (Neil Flynn of counsel), forrespondents.
In an action, inter alia, to recover damages for wrongful death, etc., the defendants appealfrom so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January26, 2010, as granted the plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The instant action arose out of an automobile accident which occurred in the eastboundshoulder of the Long Island Expressway, near Exit 51 in Huntington, at approximately 4:00 a.m.on February 17, 2007. The car in which the plaintiffs' decedent was seated was struck in the rearwhile it was stopped, for reasons unknown, on the shoulder by a car operated by the defendantDavid Thai (hereinafter the defendant driver) and owned by the defendant Hoa Thai (hereinaftertogether the defendants). The defendant driver admitted that he had fallen asleep prior to thecollision and recalled last being awake two exits before the collision.
Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs'motion for summary judgment on the issue of liability. Although, in general, the issue ofproximate cause is for the jury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308[1980]; Ely v Pierce, 302 AD2d 489 [2003]), liability may not be imposed upon a partywho merely furnishes the condition or occasion for the occurrence of the event but is not one ofits causes (see Ely v Pierce, 302 AD2d at 489; see also Saviano v City of New York, 5 AD3d 581 [2004]).
Here, the plaintiffs established their entitlement to judgment as a matter of law by submittingevidence that the location of the decedent's car merely furnished the condition for the accident,and was not a proximate cause of his injuries and death. Even if the decedent violated Vehicleand Traffic Law § 1202 (a) (1) (j) by being stopped on the shoulder of the Long IslandExpressway, the sole proximate cause of the subject accident was the defendant driver fallingasleep before the subject accident (seeSpence v Lake Serv. Sta., Inc., 13 AD3d 276 [2004]; Honkala v Gibson Constr.Co., 300 AD2d 445 [2002]; Hyland v Calace, 244 AD2d 318 [1997]; Lectora vGundrum, 225 AD2d 738 [1996]; [*2]Metzler vBrawley, 209 AD2d 487 [1994]; cf. Dowling v Consolidated Carriers Corp., 103AD2d 675 [1984], affd 65 NY2d 799 [1985]). In opposition, the defendants failed toraise a triable issue of fact. Accordingly, the plaintiffs' motion for summary judgment on theissue of liability was properly granted.
The defendants' assertion that various items of evidence, including the deposition testimonyof the defendant driver, should not have been considered by the Supreme Court is raised for thefirst time on appeal and, therefore, is not properly before this Court (see Jones v Castro-Tinco, 62 AD3d957 [2009]; Mariano v New YorkCity Tr. Auth., 38 AD3d 236 [2007]; Sher v Scott, 203 AD2d 274 [1994]).Covello, J.P., Eng, Hall and Roman, JJ., concur.