JAFFE v. DAVIS

In a negligence case, summary judgment may not be appropriate even where the facts are uncontested (Garcia v J.C. Duggan, Inc., 180 A.D.2d 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 A.D.2d 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 A.D.2d 355, lv denied 80 N.Y.2d 753).

Concur — Ellerin, J.P., Kupferman, Ross, Asch and Tom, JJ.