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

577
CA 14-01839
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


WAYNE F. HURLBURT AND MARSHA A. HURLBURT,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NOBLE ENVIRONMENTAL POWER, LLC, ET AL.,
DEFENDANTS,
AND FRANK MONTELEONE, DOING BUSINESS AS
FRANK MONTELEONE DUMP TRUCK & EXCAVATING,
DEFENDANT-APPELLANT.


KENNEY SHELTON LIPTAK NOWAK LLP, ROCHESTER (RICHARD C. BRISTER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

KAMMHOLZ MESSINA LLP, VICTOR (BRADLEY P. KAMMHOLZ OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered December 24, 2013. The order, insofar as
appealed from, denied the motion of defendant Frank Monteleone, doing
business as Frank Monteleone Dump Truck & Excavating for summary
judgment dismissing the complaint against him.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint against defendant Frank Monteleone, doing business
as Frank Monteleone Dump Truck & Excavating, is dismissed.

     Memorandum: Wayne F. Hurlburt (plaintiff) and his wife commenced
this action to recover damages for injuries sustained by plaintiff
when a bulldozer driven by plaintiff’s coworker, Stephen Boyd, ran
over his right leg. Plaintiff was working with Boyd to construct an
access road and, at the time of his accident, plaintiff was directing
the dump trucks bringing gravel for the road. Just before the
accident occurred, plaintiff, standing behind the bulldozer, signaled
to Harold Scott, a dump truck driver for Frank Monteleone, doing
business as Frank Monteleone Dump Truck & Excavating (defendant), to
back up and dump the truck’s load. Plaintiff then moved out of the
path of the bulldozer, which was grading the gravel that had already
been dumped. When Scott appeared not to see the signal, plaintiff
again moved behind the bulldozer to signal Scott. Although plaintiff
heard the back-up alarm on the bulldozer as it again graded the
gravel, he failed to move out of the bulldozer’s path in time to avoid
being hit. Plaintiff alleges that he was in the path of the
                                 -2-                           577
                                                         CA 14-01839

bulldozer, and therefore sustained injuries, because of Scott’s breach
of a duty to pay attention and to move his truck promptly when
directed to do so. Defendant moved for summary judgment dismissing
the complaint against him, contending that no duty to plaintiff was
breached, and that any breach was not a proximate cause of plaintiff’s
injuries. Supreme Court denied the motion, finding that Scott had
“some duty to move his truck with reasonable promptness” and that
there were triable issues of fact whether Scott’s breach of that duty
proximately caused plaintiff’s injuries. We conclude that the court
erred in denying the motion, and we therefore reverse the order
insofar as appealed from.

     Even assuming, arguendo, that Scott owed plaintiff a duty to move
his truck with reasonable promptness when directed to do so, we
conclude that any breach of that duty was not a proximate cause of
plaintiff’s injuries. Although “[a]s a general rule, the question of
proximate cause is to be decided by the finder of fact, aided by
appropriate instructions” (Derdiarian v Felix Contr. Corp., 51 NY2d
308, 312), where a defendant’s actions merely “furnish[ ] the
condition or occasion” for the events leading to a plaintiff’s
injuries, those actions will not be deemed a proximate cause of the
injuries (Rodriguez v Pro Cable Servs. Co. Ltd. Partnership, 266 AD2d
894, 895; see generally Sheehan v City of New York, 40 NY2d 496, 503).
Here, while Scott’s alleged inattention created the opportunity for
plaintiff to be standing behind the moving bulldozer, it did not cause
him to stand behind the bulldozer or stay in the bulldozer’s path
despite his knowledge that the bulldozer was approaching. In other
words, “[a]lthough [defendant’s alleged] negligence undoubtedly served
to place [plaintiff] at the site of the accident, the intervening
act[s of plaintiff and Boyd] w[ere] divorced from and not the
foreseeable risk associated with the original [alleged] negligence . .
. In short, the [alleged] negligence of [defendant] merely furnished
the occasion for an unrelated act to cause injuries not ordinarily
anticipated” (Derdiarian, 51 NY2d at 315-316).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
