SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1088 

CA 12-00773 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.

 

MARK GARDNER AND JOANNE GARDNER, 

PLAINTIFFS-APPELLANTS,

 

V MEMORANDUM AND ORDER

JONATHAN C. PERRINE, ET AL., DEFENDANTS, 

AND SEALAND CONTRACTORS CORP., 

DEFENDANT-RESPONDENT. 

 

ROSE & REH, LLC, VICTOR, MICHAEL STEINBERG, ROCHESTER, FOR

PLAINTIFFS-APPELLANTS. 

LAW OFFICES OF LAURIE G. OGDEN, ESQ., ROCHESTER (GARY J. O’DONNELL OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Ontario County

(Frederick G. Reed, A.J.), entered December 15, 2011 in a personal

injury action. The order granted the motion of defendant Sealand

Contractors Corp. for summary judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is denied

and the complaint against defendant Sealand Contractors Corp. is

reinstated. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Mark Gardner (plaintiff) when he was struck by a

vehicle while attempting to repair a dislodged water valve cover on

North Main Street in Canandaigua. At the time of the accident,

plaintiff was an engineer employed by the New York State Department of

Transportation and was overseeing the repaving work of Sealand

Contractors Corp. (defendant). Plaintiff noticed the dislodged valve

cover in the street and contacted a supervisor at defendant to repair

the cover. According to plaintiff, the supervisor indicated that all

of defendant’s crews had left for the day and asked plaintiff to take

care of the problem. Plaintiff parked his vehicle partially on the

road and turned on the vehicle’s emergency light. He attempted to fix

the cover but realized that he needed a tool in the trunk of his

vehicle to do so. While standing behind his vehicle retrieving the

tool, plaintiff was struck by a passing vehicle.

Defendant moved for summary judgment seeking, inter alia,

dismissal of the complaint against it on the ground that, even if it

was negligent, its negligence provided only the occasion or
-2- 1088 

CA 12-00773 

opportunity for the accident and was not a proximate cause of the

accident. We conclude that Supreme Court erred in granting the

motion. “To establish a prima facie case, plaintiff must show that

‘defendant’s negligence was a substantial cause of the events which

produced the injury’ ” (Kush v City of Buffalo, 59 NY2d 26, 32-33). 

“An intervening act will be deemed a superseding cause and will serve

to relieve defendant of liability when the act is of such an

extraordinary nature or so attenuates defendant’s negligence from the

ultimate injury that responsibility for the injury may not be

reasonably attributed to the defendant . . . When, however, the

intervening act is a natural and foreseeable consequence of a

circumstance created by defendant, liability will subsist” (id. at

33). “[T]hese issues generally are for the [factfinder] to resolve”

(Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52

NY2d 784).

Here, defendant failed to meet its initial burden of establishing

that the intervening acts of plaintiff in positioning himself in the

middle of the road, and the third party striking plaintiff with his

vehicle, were unforeseeable and extraordinary acts. The deposition

testimony and the photographs of the scene of the accident established

that the water valve was in the middle of the driving lane, not in the

shoulder of the street, so that it was necessary for plaintiff to

stand in the middle of the road to fix the displaced cover. Plaintiff

testified that he positioned his vehicle partially in the road to

protect himself while at the same time giving motorists room to

maneuver around him. It was therefore foreseeable that plaintiff

would be standing in the road while attempting to fix the defect. It

was also foreseeable that there was a risk to plaintiff of being

struck by an inattentive driver as he attempted to fix the displaced

cover (see White v Diaz, 49 AD3d 134, 140).

The court’s reliance on Barnes v Fix (63 AD3d 1515, lv denied 13

NY3d 716) was misplaced. In that case, the plaintiff wife (hereafter,

the plaintiff) was rear-ended by a vehicle driven by Harrison W.

Caleb, Jr., but was not injured in that accident (id. at 1515-1516). 

Caleb moved his vehicle to the side of the road, while the plaintiff

left her vehicle in the road and stood outside it to wait for the

police (id. at 1515). A vehicle driven by one of the defendants, Dean

E. Fix, slid out of control, and the plaintiff attempted to reenter

her vehicle but was unable to do so and was injured when Fix’s vehicle

struck her vehicle (id. at 1515-1516). We held that Caleb was not

liable for injuries sustained by the plaintiff in the second accident

because his “negligence, if any, ‘did nothing more than to furnish the

condition or give rise to the occasion by which the injury was made

possible and which was brought about by the intervention of a new,

independent and efficient cause’ ” (id. at 1516, quoting Gralton v

Oliver, 277 App Div 449, 452, affd 302 NY 864). The record on appeal

in Barnes establishes that, as in Gralton, the plaintiff’s vehicle was

stopped in no different a position after the first accident, which was

at or near a stop sign, i.e., a normal or lawful position and not a

position of peril (see Gralton, 277 App Div at 450, 452; see also

Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952, mot to amend

remittitur granted 46 NY2d 770). In contrast here, the alleged
-3- 1088 

CA 12-00773 

negligent act of defendant placed plaintiff in an unsafe position,

i.e., standing in the road with vehicles driving by him (see

Betancourt v Manhattan Ford Lincoln Mercury, 195 AD2d 246, 247-248,

appeal dismissed 84 NY2d 932).

Entered: December 21, 2012 Frances E. Cafarell

Clerk of the Court