Summary
affirming summary judgment in favor of defendant where "the proximate cause of decedent's death was his own willful behavior in engaging in the hazardous and illegal activity known as `elevator surfing'"
Summary of this case from Farley v. Greyhound Canada Transportation Corp.Opinion
2684
December 31, 2002.
Order, Supreme Court, New York County (Michael Stallman, J.), entered October 15, 2001, which, upon the grant of renewal, adhered to the prior order of the same court and Justice granting defendant New York City Housing Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Brian J. Isaac, for Plaintiff-Appellant.
Herbert Rubin, for Defendant-Respondent.
Before: SULLIVAN, J.P., ELLERIN, LERNER, GONZALEZ, JJ.
The motion court, in granting defendant Housing Authority's motion for summary judgment dismissing the complaint, properly held that the proximate cause of decedent's death was his own willful behavior in engaging in the hazardous and illegal activity known as "elevator surfing," and compensation should not be awarded in such circumstances (see Manning v. Brown, 91 N.Y.2d 116; Barker v. Kallash, 63 N.Y.2d 19;Matter of McMillan v. New York City Hous. Auth., 266 A.D.2d 153, lv denied 95 N.Y.2d 752; Tillmon v. New York City Hous. Auth., 203 A.D.2d 19). The case of Alami v. Volkswagen of Am. ( 97 N.Y.2d 281) does not require a different result. Unlike the plaintiff in Alami, plaintiff here is not trying to recover for some defect violative of a duty owed to the general public lawfully engaged. Instead, plaintiff seeks to recover for the hazardous and illegal conduct of decedent — the sort of conduct that may not be relied upon by its perpetrator, or, as here, by its perpetrator's representative, to define a defendant's duty (see id. at 287).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.