Scribani v. Buchannon

To prevail on their motion for partial summary judgment on the issue of liability, plaintiffs were required to establish entitlement to judgment as a matter of law by presenting sufficient proof to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]; Jones v G & I Homes, Inc., 86 AD3d 786 , 787 [2011]). Inasmuch as the record reveals several issues of fact regarding the reasonableness of the actions of both decedent and Buchannon, as well as the proximate cause of the accident, Supreme Court properly denied plaintiffs’ motion. Decedent’s speed, ability to observe the tractor with attached wagon, and opportunity to take evasive action are all unresolved questions on the record before us. While plaintiffs argue that Buchannon should have erected warning signs, observed decedent sooner and braked earlier, the record does not conclusively establish that Buchannon acted negligently or that his conduct was the sole proximate cause of the accident. The determination as to whether the parties acted negligently and the apportionment of fault between them is a question properly addressed to the jury (see O’Buckley v County of Chemung, 88 AD3d 1140 , 1141 [2011]; Bores v Bolde, 88 AD3d 1243 , 1243-1244 [2011]; Jones v G & I Homes, Inc., 86 AD3d at 787-788 ).

Inasmuch as the record reflects, and Supreme Court found, that a valid cause of action could be stated against Skovsende on the theory of respondeat superior and plaintiffs did raise such an argument in their motion papers, the complaint should not have been dismissed against Skovsende outright. Instead,