Jaffe v. Davis

Order, Supreme Court, Bronx County (Anne Targum, J.), entered September 14, 1994, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.

In a negligence case, summary judgment may not be appropriate even where the facts are uncontested (Garcia v J. C. Duggan, Inc., 180 AD2d 579, 580). As the IAS Court held, the conduct of the driver of appellant’s car in placing it in an open lane of traffic after rear-ending plaintiff’s car at a toll booth permits conflicting inferences whether such contributed "in any way” to the accident that resulted in plaintiff’s injuries (cf., Joseph v New York City Tr. Auth., 149 AD2d 669). Defendant’s argument that plaintiff’s own superseding negligence severed any causal connection is made for the first time on appeal, and we decline to reach it (see, City of New York v Stack, 178 AD2d 355, lv denied 80 NY2d 753). Concur—Ellerin, J. P., Kupferman, Ross, Asch and Tom, JJ.