DiNatale v. State Farm Mutual Automobile Insurance

Gorski, J.,

dissents in part and votes to affirm in the following memorandum. I respectfully dissent in part and would af*1126firm that part of the order denying summary judgment to the appealing defendants. I agree with the majority that Supreme Court properly denied the motions of defendants Carstar Collision of Amherst, Inc., Michael F. Graziadei, Jean L. Graziadei, Monica Frankish and Wei Tsu Wang for summary judgment dismissing the complaints and cross claims against them because there are triable issues of fact whether those defendants breached a duty of due care to the accident victims and whether the alleged negligence of those defendants was a proximate cause of the injuries and fatalities. However, I disagree with the majority’s conclusion that, as a matter of law, there was no causal nexus between the alleged negligence of defendants State Farm Mutual Automobile Insurance Company (State Farm), Carl E. Molin, Jr. and Thomas H. Brown, Sr. and the injuries and fatalities. The issue whether the conceded failure of those defendants to keep the sidewalk abutting their properties clear of ice and snow, in violation of a Town ordinance (Amherst Town Code § 83-9-5 [5-1]), was a proximate cause of the accident is for a jury to resolve (see Fonzi v Beishline, 270 AD2d 912, 913 [2000]). “The test for proximate cause is ‘whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the [defendants’] negligence’ ” (id.). There is evidence in the record that the accident victims were denied access to the sidewalk when they first approached it adjacent to the State Farm, Molin and Brown properties and that being turned away from the safety of the sidewalk at that time was the initial impetus for their being in the roadway. Based on that evidence, the trier of fact could conclude that the presence of the accident victims in the roadway at the point of impact was a foreseeable consequence of State Farm’s, Molin’s and Brown’s breach of duty in failing to comply with the ordinance requiring sidewalks to be cleared of ice and snow (see Ernest v Red Creek Cent. School Dist., 93 NY2d 664 [1999]; Fonzi, 270 AD2d at 913). Because the issues of foreseeability and proximate cause are fact-laden questions, it is my view that those issues should be resolved at trial (see Fonzi, 270 AD2d at 913).