Opinion
2014-01225
03-18-2015
Julia RICCIO, appellant, v. KID FIT, INC., et al., respondents.
Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant. Morris, Duffy, Alonso & Faley, LLP, New York, N.Y. (Arjay G. Yao of counsel), for respondents.
Harmon, Linder, & Rogowsky (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for appellant.Morris, Duffy, Alonso & Faley, LLP, New York, N.Y. (Arjay G. Yao of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated December 9, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
While attending her grandson's birthday party at the defendant Little Gym of Scarsdale, the plaintiff allegedly was burned by a lit sterno cannister, which was attached underneath a chafing tray, as she carried the chafing tray from a table to the sink on the defendants' premises.
Initially, contrary to the defendants' contention and the Supreme Court's conclusion, the doctrine of primary assumption of the risk is not applicable here, as the plaintiff was not involved in a sporting event or a recreational activity when she allegedly was injured (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 396, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; Wolfe v. North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 996 N.Y.S.2d 125 ).
Nonetheless, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. “Generally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Scala v. Scala, 31 A.D.3d 423, 424, 818 N.Y.S.2d 151 ). “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d at 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Scala v. Scala, 31 A.D.3d at 424, 818 N.Y.S.2d 151 ). “Additionally, there may be more than one proximate cause” of a plaintiff's injuries (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550 ; see Gestetner v. Teitelbaum, 52 A.D.3d 778, 778, 860 N.Y.S.2d 208 ; Scala v. Scala, 31 A.D.3d at 424–425, 818 N.Y.S.2d 151 ; Hyde v. Long Is. R.R. Co., 277 A.D.2d 425, 426, 717 N.Y.S.2d 231 ). To sustain the burden of proving a prima facie case, “the plaintiff in a negligence action ‘must generally show that the defendant's negligence was a substantial cause of the events which produced the injury’ ” (Lapidus v. State of New York, 57 A.D.3d 83, 94, 866 N.Y.S.2d 711, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).
Although the issue of proximate cause is generally for the jury, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes (see Ely v. Pierce, 302 A.D.2d 489, 755 N.Y.S.2d 250 ; see also Saviano v. City of New York, 5 A.D.3d 581, 582, 774 N.Y.S.2d 82 ). Here, even if the defendants' employees inadvertently disposed of the caps to the sterno cannisters prior to the accident, this merely furnished the occasion for the accident, and any alleged negligence by the defendants did not proximately cause the accident. The evidence proffered by the defendants in support of their motion established, prima facie, that the sole proximate cause of the accident was the plaintiff's negligence in lifting from the table the chafing tray, to which the lit sterno cannister was attached, and walking across the room to the sink, while positioning the lit sterno cannister and chafing tray very close to her body (see Bruno v. Thermo King Corp., 66 A.D.3d 727, 728–729, 888 N.Y.S.2d 523 ). The plaintiff's actions in carrying the lit sterno cannister so close to her body superseded the defendants' conduct and terminated the defendants' liability for her injuries (see Egan v. A.J. Constr. Corp., 94 N.Y.2d 839, 702 N.Y.S.2d 574, 724 N.E.2d 366 ; cf. Stephenson v. Barrasso & Sons, Inc., 81 A.D.3d 809, 917 N.Y.S.2d 242 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.