        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

550
CA 13-01816
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


MARLYN PRZESIEK AND ROBERT A. PRZESIEK,
CLAIMANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 112217.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HALL, RICKETTS, MARKY & GURBACKI, P.C., EAST AURORA (ROBERT H.
GURBACKI OF COUNSEL), FOR CLAIMANTS-RESPONDENTS.


     Appeal from a judgment of the Court of Claims (Michael E. Hudson,
J.), entered December 19, 2012. The interlocutory judgment
apportioned liability for negligence after a trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimants commenced this action against defendant,
the State of New York (State), seeking damages for injuries that
Marlyn Przesiek (claimant) sustained in a motor vehicle accident that
occurred at the intersection of Bullis Road and Two Rod Road in the
Town of Marilla. At the time of the accident, claimant was a
passenger in a vehicle operated by Mary Ann Kiczewski. While
traveling east on Bullis Road, a county road, Kiczewski stopped at the
intersection of Two Rod Road, a State-owned highway. There was a stop
sign and a flashing red traffic light facing motorists on Bullis Road
as they approached the intersection, which is regulated by the State.
After coming to a complete stop and then entering the intersection,
Kiczewski’s vehicle was struck on the passenger’s side by a dump truck
operated by Richard Martin, who was traveling north on Two Rod Road
and faced a flashing yellow traffic light at the intersection.
Kiczewski evidently did not see the approaching truck, and claimant,
sitting in the front passenger’s seat, sustained severe injuries in
the accident, rendering her totally disabled.

     Claimants alleged in their claim that the State negligently
maintained the intersection. Following a nonjury trial on the issue
of liability, the Court of Claims determined that the State was
negligent in allowing dangerous sight-line and sight-distance problems
to exist at the intersection; in placing the stop sign on Bullis Road
                                   -2-                           550
                                                           CA 13-01816

too far from the intersection, thereby making it difficult for stopped
motorists to see northbound vehicles on Two Rod Road; and in failing
to reduce the speed limit on Two Rod Road. The court thereafter
apportioned fault at 70% for Kiczewski, 20% for the State, and 10% for
Martin, and indicated that it would schedule a separate trial on the
issue of damages. That trial has not yet been conducted. We now
affirm.

     We note at the outset that the State’s contention that the stop
sign was not negligently placed is not properly before us inasmuch as
it is raised for the first time in its reply brief (see Becker-
Manning, Inc. v Common Council of City of Utica, 114 AD3d 1143, 1144;
see Stubbs v Capellini, 108 AD3d 1057, 1059). We reject the State’s
contention that claimants failed to meet their burden of establishing
that its negligence was a proximate cause of claimant’s injuries. “In
order to prevail at trial in a negligence case, a [claimant] . . . is
not required to exclude every other possible cause, but need only
offer evidence from which proximate cause may be reasonably inferred”
(Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550). Here, based on
our review of the record, we conclude that a fair interpretation of
the evidence supports the court’s determination that the State’s
failure to remedy a known dangerous condition at the intersection was
a substantial factor in bringing about the accident (see generally
Brown v State, 79 AD3d 1579, 1582).

     Although it is true, as the State contends, that the accident was
caused primarily by the negligence of Kiczewski, who failed to yield
the right-of-way to the truck, it is well settled that there may be
more than one proximate cause of the accident (see Aloi v Ellis, 96
AD3d 1564, 1565; Anastasi v Terio, 84 AD3d 992, 992), and it cannot be
said on this record that Kiczewski’s negligence, or that of Martin,
was a superseding cause of the accident that severed any causal
connection between claimant’s injuries and the State’s negligence (see
Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52
NY2d 784). Because claimants proved that the State’s negligence
“increased the likelihood of an accident,” we conclude that the court
properly determined that the State’s negligence was a “concurring
cause” of the accident (Vasquez v Figueroa, 262 AD2d 179, 182).

     Finally, for the reasons   stated by the court in its decision, we
reject the State’s contention   that claimants failed to prove by a
preponderance of the evidence   that it was negligent in failing to
reduce the speed limit on Two   Rod Road before it intersects with
Bullis Road.




Entered:   June 13, 2014                          Frances E. Cafarell
                                                  Clerk of the Court
