New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 25, 2012
ERIC SERPICO, APPELLANT,
DARREN SHERLAND AND LAURA SHERLAND, RESPONDENTS.
Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered April 5, 2011.
Serpico v Sherland
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 25, 2012
PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ
The judgment, after a non-jury trial, dismissed the action.
ORDERED that the judgment is affirmed, without costs.
In this small claims action, plaintiff seeks to recover for property damage to his automobile. At a non-jury trial, plaintiff testified that he lived on a narrow road, across the street from defendants. He stated that, on the night of December 14, 2010, immediately after he had backed his car out of his driveway, a pick-up truck had sped around a bend in the road at such a great velocity that, in order to avoid an accident, he was compelled to swerve onto defendants' side of the street, where his car was damaged on rocks which defendants had negligently placed or left in front of their house on the grass at the edge of the road. Plaintiff claimed that the rocks, as placed, violated the Town Code of the Town of Huntington, and that defendants should be held liable for the damage to his vehicle. The District Court determined that plaintiff's damages had principally been caused by the actions of the driver of the pick-up truck and by plaintiff, and dismissed the action.
It was incumbent upon plaintiff, in the first instance, to establish defendants' responsibility for the damages he sustained by proving that defendants were negligent and that their negligence was a proximate cause of the damage to his vehicle. Without deciding whether defendants were, in fact, negligent, we note that, in this case, there was an intervening act: the speeding around the bend by the driver of the pick-up truck. "An intervening act may break the causal nexus when it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'" (Maheshwari v City of New York, 2 NY3d 288, 295 , quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 ). Where there are multiple possible causes for an accident, "it is for the finder of fact to determine legal cause" (Derdiarian v Felix Contr. Corp., 51 NY2d at 315). Here, the District Court's determination of causation was well within its province as trier of fact. Consequently, we conclude that the judgment rendered substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807).
Accordingly, the judgment is affirmed.
Iannacci, J.P., Nicolai and Molia, JJ., concur. Decision Date: April 25, 2012
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