Opinion
2019–02051 Index No. 631/16
05-06-2020
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum ], of counsel] ), for appellants.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum ], of counsel] ), for appellants.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing so much of the complaint as alleged injuries sustained by the plaintiff on January 2, 2016, is granted.
Following an accident on November 11, 2015, in which the plaintiff, a pedestrian, was struck by the defendants' vehicle, the plaintiff was hospitalized and thereafter transferred to a nursing home to recuperate from the injuries she sustained in the accident. While residing at the nursing home, the plaintiff was again injured on January 2, 2016, when she allegedly attempted to use the bathroom on her own, even though she had been specifically instructed against doing so by medical staff, by moving from her bed to her wheelchair and unlocking its brake without assistance. Although the plaintiff had never before attempted these actions on her own, she alleged that she had done so because her calls for assistance to the nursing home staff had gone unanswered for more than an hour.
The Supreme Court should have granted the defendants' motion for summary judgment dismissing so much of the complaint as alleged injuries sustained by the plaintiff on January 2, 2016. The defendants established, prima facie, that any negligence on their part with regard to the November 11, 2015, accident was not a proximate cause of the accident on January 2, 2016. Neither the failure of the nursing home to answer the plaintiff's calls for assistance for a significant period of time nor the plaintiff's attempt to use a wheelchair to get from her bed to the bathroom without assistance could be deemed a normal or foreseeable consequence of the situation created by the defendants' alleged negligence (see Campbell v Central N.Y. Regional Transp. Auth. , 7 N.Y.3d 819, 820–821, 822 N.Y.S.2d 751, 855 N.E.2d 1165 ; Polye v. Nederlander Org., Inc. , 131 A.D.3d 1031, 1031–1032, 16 N.Y.S.3d 311 ). In opposition, the plaintiff failed to raise a triable issue of fact.
BALKIN, J.P., COHEN, BARROS and IANNACCI, JJ., concur.