Court Determines Liability of Driver, Operator and Owner of Box Truck
Louis Dowd allegedly was injured while attempting to get into the driver’s seat of his parked vehicle on Wythe Avenue in Brooklyn. The block of Wythe Avenue is a one-way street, with one lane for travel and one lane on each side of the street for parking. The accident occurred when Dowd opened the front driver’s side door of his parked vehicle, and the door was struck by a box truck that was driving past his vehicle. The box truck was operated by Sean McNay, owned by Kharieh Bros. and allegedly leased to the CBS Corporation.
Dowd sued McNay, Kharieh and CBS to recover damages for personal injuries, alleging that they were negligent in their ownership, maintenance, and operation of the box truck. They moved for summary judgment dismissing the complaint. Supreme Court granted the motion. Dowd appealed.
A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the accident. Upon a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party.
There can be more than one proximate cause of an accident and generally, it is for the trier of fact to determine the issue of proximate cause. The issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts.
In support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, CBS and McNay established their prima facie entitlement to judgment as a matter of law by submitting evidence which established that Dowd violated Vehicle and Traffic Law § 1214 by opening the door on the side of his vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen, and that this negligence was the sole proximate cause of the accident. In opposition, Dowd failed to raise a triable issue of fact as to whether either CBS or McNay was at fault in the happening of the accident. Accordingly, Supreme Court properly granted that branch of the their motion which was for summary judgment dismissing the complaint insofar as asserted against CBS and McNay.
The Graves Amendment provides that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner was engaged in the trade or business of renting or leasing motor vehicles and engaged in no negligence or criminal wrongdoing contributing to the accident. Therefore, to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint Kharieh Bros. was required to show that it owned the box truck driven by McNay; was engaged in the business of leasing or renting motor vehicles; (3) the accident occurred during the period of the lease or rental; and (4) there was no triable issue of fact as to Dowd’s allegation that negligent maintenance contributed to the accident. Here, Kharieh Bros. met its prima facie burden.. In opposition, Dowd failed to raise a triable issue of fact. Accordingly, Supreme Court properly granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against Kharieh.