Summary
affirming an order granting a motion to dismiss when the lower court found that the proximate cause of the injury was plaintiff slipping and not any failure on the part of the defendants
Summary of this case from Iannucci v. Lewis Tree Serv., Inc.Opinion
Argued February 23, 1967
Decided April 11, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, OLIVER D. WILLIAMS, J.
Julius Miller and Thomas W. Gleason for appellant.
Vincent A. Catoggio for respondent-appellant.
No appearance for respondent.
Order affirmed, without costs, in the following memorandum. Regardless of whether State law or maritime law applies, the order of the Appellate Division should be affirmed. If New York law applies, the question of proximate cause was for the court since the plaintiff's narrative of the accident was uncontradicted ( Rivera v. City of New York, 11 N.Y.2d 856). We agree with the Appellate Division that the cause of the plaintiff's fall was not the captain's failure to provide a ladder.
If Federal maritime law applies, the order of the Appellate Division should be affirmed on the basis that no duty was owed to the plaintiff which was breached by the defendant, McAllister ( Lauricella v. United States, 185 F.2d 327 [2d Cir., 1950]; Jackson v. Pittsburgh S.S. Co., 131 F.2d 668 [6th Cir., 1942]; see Vanderlinden v. Lorentzen, 139 F.2d 995 [2d Cir., 1944]).
Concur: Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL.