Opinion
No. 166 SSM 24.
Decided September 12, 2006.
APPEAL , by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered April 28, 2006. The Appellate Division with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), which, insofar as appealed from, had granted defendant's motion for summary judgment in part, dismissing plaintiffs claim for personal injuries, (2) denied the motion in its entirety and (3) reinstated the claim for personal injuries. The following question was certified by the Appellate Division: "Was the order of this Court, entered April 28, 2006, properly made?"
Plaintiff, who suffered from "profound deformities," commenced a personal injury action to recover damages for injuries (skin necrosis and abscess formation) he sustained while using a borrowed uncustomized wheelchair supplied by a local medical center, after he was struck by a bus owned by defendant while crossing the street in his customized wheelchair, which was damaged beyond repair.
Campbell v. Central N.Y. Regional Transp. Auth., 28 AD3d 1083, reversed.
Mackenzie Hughes LLP, Syracuse ( W. Bradley Hunt of counsel), for appellant.
James B. Fleckenstein, Syracuse, for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and defendant's motion for summary judgment dismissing the personal injury claim granted. The certified question should be answered in the negative.
Although the issue of proximate cause is ordinarily for the factfinder to resolve, defendant established that the ill-fitting replacement wheelchair provided by a third party constituted an independent intervening occurrence which operated upon, but did not flow from, the original negligence ( Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see also Ventricelli v. Kinney Sys. Rent A Car, 45 NY2d 950, 951, mot to amend remittitur granted 46 NY2d 771).
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSEN-BLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.