Kaufman v Gilbert

Kaufman v Gilbert 2007 NY Slip Op 08843 [45 AD3d 372] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Eric Kaufman, Respondent,
v
Joseph Gilbert, Defendant, Kimco Realty Corporation et al., Respondents, and GMAC Leasing Corporation, Appellant.

—[*1] Fabiani Cohen & Hall, LLP, New York City (Mary L. Maloney of counsel), for appellant.

The Law Office of Steven Cohn, P.C., Carle Place (Susan E. Dantzig of counsel), for Eric Kaufman, respondent.

Brody, O'Connor & O'Connor, Northport (Joseph P. Minasi of counsel), for Kimco Realty Corporation and Wal-Mart Stores, Inc., respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 2, 2006, which granted plaintiff's motion for summary judgment as to liability and defendants-respondents' cross motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

The facts of this case, including defendant Gilbert's testimony that before the accident his view was unobstructed for more than 30 feet and not impaired by any lack of lighting and that he had backed up his vehicle only 15 feet before striking plaintiff, support the court's finding as a matter of law that the proximate cause of the accident was Gilbert's negligence in reversing without taking adequate precautions and not the lighting in the parking lot (see e.g. Garcia v Verizon N.Y., Inc., 10 AD3d 339 [2004]; Sarmiento v C & E Assoc., 40 AD3d 524, 526 [2007]). GMAC's contention that issues of fact exist as to plaintiff's comparative negligence is unsupported by the record.

GMAC's claim of collusion is improperly raised for the first time on appeal and we decline to review it (see Consi v 531 Hudson St. Ltd. Liab. Co., 28 AD3d 370, 371 [2006]). [*2]

We have considered GMAC's remaining arguments and find them without merit. Concur—Lippman, P.J., Andrias, Nardelli, Gonzalez and Kavanagh, JJ.