| Castillo v Amjack Leasing Corp. |
| 2011 NY Slip Op 04620 [84 AD3d 1298] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Byron Castillo, Appellant, v Amjack Leasing Corp.,Defendant, and Rochris Real Estate Corp., Respondent. |
—[*1] Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Weiner, J.), entered April 28, 2010, which granted themotion of the defendant Rochris Real Estate Corp. for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff was employed as a construction worker by nonparty Reno Concrete Corp.(hereinafter Reno). Reno stored its trucks and materials at a parking lot and yard owned by thedefendant Rochris Real Estate Corp. (hereinafter Rochris). On March 27, 2008, a Renoemployee, while operating a Reno truck in reverse in the parking lot, struck the plaintiff, whowas walking behind the truck. The plaintiff allegedly sustained personal injuries as a result of theaccident.
The plaintiff commenced this action against, among others, Rochris, alleging, inter alia, thatRochris negligently designed and managed the parking lot. Rochris moved for summaryjudgment dismissing the complaint insofar as asserted against it, arguing, among other things,that any alleged negligence on its part did not proximately cause the plaintiff's accident, butrather, that the sole proximate cause of the accident was the negligence of the Reno employeewho was driving the truck involved in the accident. The Supreme Court granted the motion. Theplaintiff appeals, and we affirm.
Although the issue of proximate cause is generally one for the finder of fact (seeDerdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]), "liability may not be imposedupon a party who merely furnishes the condition or occasion for the occurrence of the event butis not one of its causes" (Ely v Pierce, 302 AD2d 489, 489 [2003]; see Saviano v Cityof New York, 5 AD3d 581 [2004]). Here, Rochris' parking lot merely furnished the occasionfor the accident, and any alleged negligence in its design or management did not proximatelycause the accident. The evidence proffered by Rochris established, prima facie, that the soleproximate cause of the accident was the negligence of the truck driver in failing to use a lookoutwhen backing up the truck in the parking lot, as he had done on prior occasions, including on theday of [*2]the accident (see Margolin v Friedman, 43NY2d 982, 983 [1978]; Rodriguez v Hernandez, 37 AD3d 809, 810 [2007]; Spraguev State of New York, 35 AD3d 843, 844 [2006]; LaSpina v City of New York, 22AD3d 528, 529 [2005]; Comolli v 81 & 13 Cortland Assoc., 285 AD2d 863 [2001]). Inopposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted Rochris' motion for summary judgmentdismissing the complaint insofar as asserted against it. Angiolillo, J.P., Florio, Belen and Roman,JJ., concur.