Opinion
No. 914 CA 07-00658.
September 28, 2007.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 7, 2007 in a personal injury action. The order granted plaintiffs' motion for partial summary judgment on the issues of negligence and proximate cause and to dismiss the first affirmative defense.
BURGIO, KITA CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JEFFREY FREEDMAN, ATTORNEYS AT LAW, BUFFALO (BRIAN D. KNAUTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Before: Present — Scudder, P.J., Martoche, Centra, Green and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Mary Elizabethearl (plaintiff) as the result of swallowing a piece of glass in food she ate while attending a dinner party at defendant's home. Supreme Court properly granted plaintiffs' motion for partial summary judgment on the issues of negligence and proximate cause and to dismiss defendant's first affirmative defense, alleging plaintiffs culpable conduct and assumption of the risk. Plaintiffs met their initial burden by establishing that defendant, as the property owner, owed a duty of reasonable care to them under the circumstances ( see generally Basso v Miller, 40 NY2d 233, 241; Sweeney v Lopez, 16 AD3d 1174, 1175), that defendant breached that duty, and that plaintiff's injuries were proximately caused by the breach ( see Coral v State of New York, 29 AD3d 851), and defendant failed to raise an issue of fact to defeat the motion ( see generally Zuckerman v City of New York, 49 NY2d 557, 562).