Warmus v Sutton

Warmus v Sutton 2010 NY Slip Op 04005 [73 AD3d 1460] May 7, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

Joanne M. Warmus, Appellant, v Larry E. Sutton et al., Respondents.

—[*1] Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Kevin Vasquez Hutcheson of counsel), for plaintiff-appellant.

Law Offices of Taylor & Santacrose, Buffalo (Christopher R. Turner of counsel), for defendants-respondents.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered September 2, 2009 in a personal injury action. The order, insofar as appealed from, denied that part of the motion of plaintiff for summary judgment on the issue of proximate cause.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs and the motion is granted in its entirety.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when a tractor-trailer owned by defendant Relco Systems, Inc. and operated by defendant Larry E. Sutton struck a motorcycle on which plaintiff was a passenger. Supreme Court granted those parts of plaintiff's motion seeking summary judgment on the issue of negligence and dismissing the first affirmative defense. Plaintiff appeals from the order insofar as it denied that part of her motion seeking summary judgment on the issue of proximate cause, and we reverse. Plaintiff met her initial burden with respect thereto, and defendants failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche, Fahey, Green and Gorski, JJ.