Biamonte v Biamonte, 2023 NY Slip Op 04296 [219 AD3d 683]
August 16, 2023
Appellate Division, Second Department
[*1]
Stephen Biamonte, as Administrator of the Estate of Erika Michele Strebel, Deceased, Respondent,
v
Joseph Biamonte, Appellant, et al., Defendant.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Maria Caraballo-Mitra of counsel), for appellant.
Patricia Byrne Blair, Blue Point, NY, for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendant Joseph Biamonte appeals from an order of the Supreme Court, Suffolk County (Stephen Braslow, J.), dated May 13, 2020. The order, insofar as appealed from, denied that defendant’s motion for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Joseph Biamonte for summary judgment dismissing the complaint insofar as asserted against him is granted.
The plaintiff’s decedent, Erika Michelle Strebel, was operating a vehicle owned by the defendant Joseph Biamonte (hereinafter the defendant) with his consent. The vehicle ran out of gas on Montauk Highway, a two-lane highway with a speed limit of 50 miles per hour. The decedent stopped the vehicle on the full asphalt shoulder, which was painted white at the subject location. The decedent was standing outside of the vehicle with a gas can when she was fatally struck by a pickup truck operated by a non-party, hit-and-run driver.
In this action, the plaintiff alleged that the defendant knew that his vehicle had a malfunctioning gas gauge but nonetheless “allowed the decedent . . . to borrow and use” the vehicle. The plaintiff further alleged that the defendant negligently failed to maintain the vehicle in proper working order and loaned the vehicle to the decedent while it was in a state of disrepair, and that this negligence caused the decedent’s injuries. After the completion of discovery, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that it was not foreseeable that running out of gas would result in the decedent being struck by a hit-and-run driver, and that the defendant’s alleged conduct was not a proximate cause of the accident. The Supreme Court denied the motion. The defendant appeals, and we reverse.
In support of his motion, the defendant established, prima facie, that his alleged negligence was not a proximate cause of the accident. Even assuming, arguendo, that permitting the decedent to borrow a vehicle with a malfunctioning gas gauge “furnishe[d] the condition or occasion” for the accident ( Estate of Morgana v Staten Is. Hotel , 140 AD3d 1113 , 1114 [2016]; see Derdiarian v Felix Contr. Corp. , 51 NY2d 308, 316 [1980]), under the circumstances here, a hit-and-run driver striking the [*2] decedent constituted an intervening act which was not foreseeable ( see Martinez v Lazaroff , 48 NY2d 819, 820 [1979]; Ventricelli v Kinney Sys. Rent A Car , 45 NY2d 950, 952 [1978]; Siso v Tawil , 2 AD3d 828 , 829 [2003]; see also Andrade v Zamora , 124 AD3d 570 [2015]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant’s allegedly negligent conduct contributed to the happening of the accident ( see Siso v Tawil , 2 AD3d at 829; Johnson v Johnson Chem. Co. , 183 AD2d 64, 72 [1992]).
In light of our determination, it is not necessary to reach the parties’ remaining contentions.
Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against him. Dillon, J.P., Miller, Wooten and Taylor, JJ., concur..