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TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT)

The Second Department determined defendant landlord’s motion for summary judgment in this negligence action by a tenant was properly denied. Plaintiff was injured attempting to move a heavy radiator that was in the common area outside his apartment. Plaintiff’s family members had complained that the radiator obstructed the path from the apartment to the staircase, but the radiator had remained there for months:

… [T]he defendant landlord moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff’s conduct was the sole proximate cause of the accident. …

The defendant landlord failed to establish, prima facie, that it was not foreseeable that the plaintiff would attempt to move the heavy radiator and that the plaintiff’s conduct constituted a superseding and intervening act which severed any nexus between the defendant landlord’s alleged negligence and the plaintiff’s injuries … . Munoz v Kiryat Stockholm, LLC, 2018 NY Slip Op 04552, Second Dept 6-20-18

​NEGLIGENCE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SOLE PROXIMATE CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/SUPERSEDING CAUSE (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))/FORESEEABILITY (TENANT WAS INJURED TRYING TO MOVE A HEAVY RADIATOR THAT HAD BEEN LEFT OUTSIDE HIS APARTMENT FOR MONTHS, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT CLAIMING PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PROPERLY DENIED (SECOND DEPT))

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THE PRESUMPTION OF SUGGESTIVENESS RAISED BY THE PEOPLE’S FAILURE TO PRESENT THE PHOTO ARRAYS USED BY THE WITNESS TO IDENTIFY THE DEFENDANT WAS OVERCOME BY THE EVIDENCE OF THE SHEER NUMBER OF PHOTOS VIEWED BY THE WITNESS (SECOND DEPT).
THE CONDITIONAL ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE DID NOT MEET THE CRITERIA OF CPLR 3216; THEREFORE THE MATTER SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).
DEFENDANT’S UNSUPPORTED ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY WAS NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR END COLLISION CASE (SECOND DEPT).
THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).
JUDGE DID NOT RULE ON DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS PLEA, APPEAL HELD IN ABEYANCE, MATTER REMITTED FOR APPOINTMENT OF NEW COUNSEL AND A RULING ON THE MOTION (SECOND DEPT).
ALTHOUGH DEFENDANT DID NOT SIGN THE NOTE, HE WAS A TITLE-HOLDER AND WAS LISTED AS A BORROWER ON THE MORTGAGE; THEREFORE DEFENDANT WAS ENTITLED TO THE NOTICE OF FORECLOSURE IN ACCORDANCE WITH RPAPL 1304 (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE DENIED THE MOTION TO DISMISS THE ARTICLE 78 PETITION/COMPLAINT AND THEN CONSIDERED THE MERITS OF THE PETITION/COMPLAINT WITHOUT ALLOWING RESPONDENT TO INTERPOSE AN ANSWER; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION/COMPLAINT ON GROUNDS NOT ADDRESSED BY THE UNDERLYING ADMINSTRATIVE RULING (SECOND DEPT).
THE ESTATE OF THE MORTGAGOR WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION; THE PROPERTY WAS CONVEYED BEFORE HER DEATH AND THE COMPLAINT DOES NOT SEEK A DEFICIENCY JUDGMENT (SECOND DEPT).

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