The plaintiff Leonardo Ingrassia, Jr. commenced this action to recover for the conscious pain and suffering and wrongful death of his son Leonardo Ingrassia, III, as a result of a motor vehicle accident that occurred on April 4, 2004.

According to a written statement of Rudy N. Cantarini, at approximately 8:15 p.m., on April 4, 2004, Cantarini was operating a vehicle owned by his father Rudy V. Cantarini. His classmates at Monsignor Farrell High School - James Graziano, Leonard Pampalone, Leonardo Ingrassia and Michael Vitiello - were passengers in the vehicle. As Cantarini drove along Hylan Boulevard near Guyon Avenue, Staten Island, New York, his friends noticed the occupants in a vehicle operated by Jennifer Rodriguez. Katherine Lividikos and Tiffany McPolin were passengers in the Rodriguez vehicle. Cantarini stated that he and his friends

Ingrassia v. Lividikos

tried to flirt with the occupants of the Rodriguz vehicle, but the females "brushed them off". Rodriguez testified at her deposition that the Cantarani vehicle "cut her off"a few times. McPolin testified at her deposition that the occupants of the Cantarini vehicle yelled out the vehicle that they were bitches. It is undisputed that Graziano, Ingrassia and Vitiello threw dog biscuits at the Rodriguez vehicle.

Cantarini testified at his deposition that at a red light at the intersection of Hylan Boulevard and Tysens Lane, the occupants of the Rodriguez vehicle exited the car, screamed and spit at the occupants of the Cantarini vehicle and punched the rear passenger window. Rodriguez testified that she told the occupants of the Cantarani vehicle to leave them alone and they cursed at her. McPolin testified that no one ever exited the Rodriguez vehicle. The Cantarini vehicle proceeded along Hylan Boulevard and made a left on to Ebbits Avenue heading toward Amboy Road. Rodriguez testified at her deposition that she followed the Cantarini vehicle. In contrast, McPolin testified that the Cantarini vehicle was always behind the Rodriguez vehicle.

Arben Selmani and Demosthenes Lividikos testified at their depositions that on the evening of April 4, 2004, they and Adie Garber went to Joseph Milrud's house to watch the Sopranos. At approximately 9 p.m., Lividikos received a telephone call from his sister Kathy Lividikos that she was in trouble and that she was being chased. Rodriguez also testified that Kathy Lividikos called her brother Demosthenes Lividikos about the confrontation with the occupants of the Cantarnini vehicle and that she followed the vehicle so that they could tell

At approximately 9:15 p.m., on Amboy Road near Farrell High School, the Lividikos vehicle pulled along side the Cantarini vehicle. All the occupants of the Lividikos vehicle exited and [*2]approached the Cantarini vehicle. Lividikos testified that he went over to the driver's side, banged on the driver's window and yelled, "What is your problem?". Cantarini replied that they did not have a problem. Selmani testified that Milrud hit the back passenger window with the baseball bat because Milrud thought that the Cantarini vehicle was going to intentionally strike them. Cantarini indicated in his statement that Lividikos tried to smash in the windshield with his hand and both Selmani and Milrud struck the car with baseball bats. The rear passenger window shattered, causing Ingrassia to suffer facial lacerations. The occupants of the Cantarini vehicle remained in the vehicle.

Then, the Cantarini vehicle drove south on Amboy Road, made a left on to Keegans Lane, then a right on to Hylan Boulevard. Selmani , Rodriguez, McPolin and Demosthenes Lividikos testified that neither the Rodriguez nor the Lividikos vehicles followed the Cantarini vehicle. Instead, they went to a diner to get some ice for Lividikos' hand and then went back to Milrud's house. In his statement, Cantarini testified that the Lividikos vehicle chased after him and he was traveling between 50 to 60 miles per hour.

At the intersection of Richmond Avenue and Hylan Boulevard, the Cantarini vehicle proceeded through the intersection and collided with the front vehicle owned by Antonio Gambino and operated by Christopher Gambino. The Cantarini vehicle fishtailed, hit a parked car, a wooden landscape wall and then overturned. Ingrassia, who was not wearing a seatbelt, was ejected during the accident and died. Christopher Gambino testified at his deposition that he had stopped for a red light on Richmond Avenue, and only entered the intersection when the light turned green. Gambino tried to stop when he saw the Cantarini vehicle approaching, but could not avoid the collision because the Cantarini vehicle was going too fast. The police report indicates that Cantarini had a red light. In his written statement and at his deposition, Cantarini indicated that the light had turned yellow, then red, as he entered the intersection. A non-party witness Victoria Rivelli testified at her deposition that the Cantarini vehicle was traveling about 55 to 60 mph and went through a red light. The Gambino vehicle attempted to avoid the Cantarini vehicle, but could not.

Rodriguez and McPolin testified that they and Kathy Lividikos went back to Rodriguez's house after they left Milrud's house. McPolin telephoned her sister Vanessa McPolin to come and pick them up because Kathy Lividikos needed a ride home and Rodriguez did not feel like driving her. After hanging out for a half an hour, Vanessa McPolin drove south on Hylan Boulevard to take Kathy Lividikos home. Rodriguez testified that they came upon the accident and Kathy Lividikos telephoned her brother to tell him about it. Demones Lividikos, Garber and Selmani went to the accident scene in Selmani's vehicle. Selmani could not see anything, so he took Garber back to Milrud's house and went home.

Several months later, Demosthenes Lividikos, Selmani, and Milrud were arrested in connection with the accident. On March 1, 2005, Demosthenes Lividikos pled guilty to menacing in the third degree and was later sentenced to one year probation. Selmani pled guilty to criminal possession of a weapon in the fourth degree and was later sentenced to three years probation. Milrud pled guilty to assault in the third degree and was later sentenced to an intermittent sentence of 30 days. [*3]

In August, 2004, Ingrassia commenced this action against Demosthenes Lividikos, Arben Selmani, Joseph Milrud, Adie Garber, Katherine Lividikos, Vasilis Lividikos, Rudy N. Cantarini, Rudy V. Cantarini, Christopher Gambino and Antonio Gambino. In December, 2004, Geico General Insurance Company commenced a declaratory judgment action against all the parties in the action on the ground that its policy on the Lividikos vehicle did not apply because of an exclusion for any intentional acts. In March, 2006, Ingrassia commenced an action against Jennifer Rodriguez. Issue was joined by service of an answer by all defendants, and the three cases were consolidated for purposes of joint trial only.

After the completion of discovery, Selmani, Christopher and Antonio Gambino and Rodriguez moved for summary judgment dismissing the complaint against them. More than 60 days after the filing of the note of issue, Vasilis and Demosthenes Lividikos cross-moved for summary judgment dismissing the complaint against them. The plaintiff also cross-moved for

Defendant Rodriguez opposes the Lividikos cross-motion against Ingrassia on the ground that the Lividikos cross-motion for summary judgment dismissing Ingrassia's complaint is untimely. Lividikos concedes that the motion in untimely as the Uniform Civil Trial Rules of the Supreme Court, Richmond County, provides that summary judgment motions must be made within 60 days of the filing of the note of issue. Although Lividikos denominated their motion as a cross-motion, their effort to "piggyback" on their co-defendants' timely motions for summary judgment is unavailing since a cross-motion can only be made for relief against a "moving party", and the plaintiff did not move for summary judgment against Lividikos (see, Gaines v. Shell-Mar Foods, Inc., 21 AD3d 986 [2d Dept. 2005]). As no "good cause" was proferred by Lividikos for the late filing, its motion must be

denied even in the absence of prejudice (see, Gonzalez v. Zam Apt. Corp., 11 AD3d 657 [2d Dept. 2005]; Gibbs v. McRide Cab Co., 10 AD3d 671 [2d Dept. 2004]).



Ingrassia v. Lividikso

PROXIMATE CAUSESelmani and Rodriguez move for summary judgment dismissing the complaint on the ground that they did nothing to cause the subject motor vehicle accident as neither the Lividikos nor the Rodriguez vehicle followed the Cantarini vehicle. Rodriguez also contends that the actions of Selmani and Milrud breaking the window with the baseball bats were a superseding, intervening cause that broke the chain of events connecting her with this [*4]incident.

The concept of proximate cause "stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct" (Derdiarian v. Felix Contracting Corp., 51 NY2d 308 [1980]; see also, Palsgraf v. Long Island R.R.Co., 249 NY 511 [1928]). "In order to find that [a] defendant's negligence was a proximate cause of the harm caused by the plaintiff, the jury must find that the negligence was a substantial factor in bringing about the injury" (Ohdan v. The City of New York, 268 AD2d 86 [1st Dept. 2000]; see also, 1A PJI 2:70 ). There may be one, or more than one, substantial factor (see, Ohdan v. City of New York, 268 AD2d 86 [1st Dept. 2000]; see also, 1A PJI 2:71).

"Where the acts of a third party intervene between the defendant's conduct and the plaintiff's injury, the casual connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation

created by the defendant's negligence" (Derdiarian v. Felix Contracting Corp, 51 NY2d 308, 315, supra; citing, Parvi v. City of Kingston, 41 NY2d 553 [1977]). "If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act

Ingrassia v. Lividikos

which breaks the casual nexus" (Derdiarian v. Felix Contracting Corp., supra). However, because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, generally these issues are for the fact finder to resolve (Derdiarian v Felix Contr. Corp., supra).

On a motion for summary judgment, the defendant must make a prima facie showing that the intervening act of a third person was a superseding cause absolving him or her from liability (see, Gomez v. Hicks, 33 AD3d 856 [2d Dept. 2006]; Dumbadze v. Schwatt, 291 AD2d 529 [2d Dept. 2002]. Under the circumstances of this case, neither Selmani nor Rodriguez established that the collision between the Cantarini vehicle and the Gambino vehicle was not a normal or foreseeable consequence of the situation created by their negligence (see, Shohet v. Sheehan, 238 AD2d 573 [2d Dept. 1997]).

Here, Selmani purposely went with Lividikos to track down the Cantarini vehicle. There is a factual dispute as to whether Selmani struck the Cantarini vehicle with the baseball bat, or whether he stood nearby holding hit. Regardless, it was not unforeseeable that a driver would speed away from such a scene and collide with another vehicle even if the Lividikos vehicle did not follow the Cantarini vehicle. It is for the trier of fact to determine whether

Selmani's actions were a substantial factor in bringing about the injury to the plaintiff (see, Carson v. Dudley, 25 AD3d 983 [3d Dept. 2006]; McKinnon v. Bell Security, 268 AD2d 220 [1st Dept. 2000]). Moreover, it cannot be said as a matter of law that it was unforeseeable that one of the occupants of the Cantarani vehicle would be injured. The precise nature of the injury

Similarly, although Rodriguez was not involved in any physical altercation with the occupants of the Cantarini vehicle, she admits that she followed the Cantarini vehicle after it made [*5]a left away from her vehicle. If she had not followed the Cantarini vehicle, the altercation may not have happened as the occupants of the Lividikos vehicle would not have been able to track the Cantarini vehicle. Although Rodriguez may not have known that Milrud and Selmani were bringing baseball bats, she certainly knew that some type of dispute was going to occur. Moreover, there is a factual dispute as to whether Rodriguez followed the Cantarini vehicle after the altercation, causing Cantarini to speed. Thus, it cannot be said as a matter of law that her negligence was not a substantial factor in bringing about the injury to the plaintiff (see, Spathos v. Gramatan Management, Inc., 2 AD3d 833 [2d Dept. 2003]; Williams v Tennien, 294 AD2d 841 [4th Dept. 2002]). "It is not required that the defendant foresee the exact manner in which her negligence will result in injury * * *; it is enough that some injury to plaintiff was foreseeable as a result of her injury" (McMorrow v. Trimper, 149

AD2d 971 [4th Dept. 1989], affd. 74 NY2d 830 [1989]; see also, Williams v. Tennien, 294 AD2d 841 [4th Dept. 2002]).

Accordingly, it is

ORDERED that the motion of defendant Arben Selmani for summary judgment dismissing the complaints against him is denied; and it is further,

ORDERED that the motion of defendants Christopher Gambino and Antonio Gambino for summary judgment is granted, unopposed, and the complaint in Action No. 1, Ingrassia v. Lividikos, Index No. 12441/2004 is dismissed as against them and the complaint in Action No. 2, GEICO v. Lividikos, Index No. 13539/2004 is dismissed as against them; and it is further,

ORDERED that the motion of defendant Jennifer Rodriguez for summary judgment dismissing the complaints against her is denied; and it is further,

ORDERED that the cross-motion of plaintiff for partial summary judgment on the issue of liability against Rudy N. Cantarini and Rudy V. Cantarini is granted, unopposed; and it is further,

ORDERED that the cross-motion of defendants Vasislis Lividikos and Demosthenes Lividikos for summary judgment dismissing the complaints against them is denied.

THIS IS THE DECISION AND ORDER OF THE COURT.

E N T E R,

Dated: February 28, 2007

J.S.C.

OCA e-submission: no Judge E-Mail