You are here: / / TWO YOUNG MEN DID NOT REALIZE THE CONCRETE THEY WERE MOVING WAS A CESSPOOL...
,

TWO YOUNG MEN DID NOT REALIZE THE CONCRETE THEY WERE MOVING WAS A CESSPOOL COVER; ONE FELL IN AND THE OTHER JUMPED IN TO RESCUE HIM; BOTH DIED FROM CHEMICAL ASPHYXIATION; QUESTIONS OF FACT WHETHER THE COVER WAS A DANGEROUS CONDITION, WHETHER THE CESSPOOL CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THE RESCUE ATTEMPT WAS FORESEEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the property owner (Cruzate) was negligent and whether the cesspool contractor (Port Jefferson) launched an instrument of harm. Two young men were planning to build a campfire in the backyard of a rental property owned by Cruzate. The men did not realize the pieces of concrete they decided to move were cesspool covers. One of the men (Fuentes) fell in, the other (Castro) jumped in to rescue him. Both were asphyxiated by chemicals that had been added when the cesspool was serviced:

… [T]he plaintiff raised a triable issue of fact as to whether the cesspool cover was in a defective condition because Port Jefferson Cesspool had improperly replaced it after servicing the cesspool, enabling Suarez to get his fingers underneath the cover and lift it … . The plaintiff submitted the affidavit of his expert, who opined that, on the date of the accident, the cover was not secure to the ground. According to the expert, there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, which was a substantial factor in the deaths of Castro and Fuentes. Moreover, Cruzate testified that he hired Port Jefferson Cesspool to service the cesspool, supervised the work, observed Port Jefferson Cesspool lift the cesspool cover, and was present when the work was completed. Therefore, there are triable issues of fact as to whether Cruzate had actual or constructive notice of the allegedly defective condition of the cesspool cover … . …

… [T]he plaintiff raised a triable issue of fact as to whether Port Jefferson Cesspool launched a force of harm and created a dangerous condition by improperly replacing the cement cover after servicing the cesspool (see generally Espinal v Melville Snow Contrs., 98 NY2d 136). The plaintiff’s expert opined, as discussed above, that there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, and that this was a substantial factor in the deaths of Castro and Fuentes. …

… [T]he fact that Castro decided to jump into the cesspool in an attempt to save his friend does not necessarily act as a bar to recovery. In 1921, the Court of Appeals, in an opinion by Judge Benjamin Cardozo, established that, with regard to the principle of foreseeability, “[d]anger invites rescue. . . . The wrong that imperils life is a wrong to the imperiled victim; it is also a wrong to his rescuer” (Wagner v International Ry. Co., 232 NY at 180 … ) this principle applies where “the actions of the injured person were reasonable in view of the emergency situation,” that is, where the rescuer “acted as a reasonably prudent person would act in the same situation, even if it later appears that the rescuer did not make the safest choice or exercise the best judgment” … . Calderon v Cruzate, 2019 NY Slip Op 06377, Second Detp 8-28-19

 

You might also like
IN THIS FORECLOSURE ACTION, DEFENDANT’S COUNTERCLAIMS FOR ABUSE OF PROCESS AND MALICIOUS PROSECUTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​
ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF, A DEVELOPMENTALLY DISABLED STUDENT, WAS KNOCKED OVER BY ANOTHER STUDENT; THE DEFENDANT SCHOOL HAS A DUTY TO PROPERLY SUPERVISE ITS STUDENTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SCHOOL (THE YOUNG ADULT INSTITUTE, INC.) (SECOND DEPT).
PETITIONERS, INMATES AT A CORRECTIONAL FACILITY, RAISED ALLEGATIONS COGNIZABLE IN HABEAS CORPUS REGARDING THE FACILITY’S RESPONSE TO COVID-19; SUPREME COURT SHOULD NOT HAVE REFUSED TO ISSUE AN ORDER TO SHOW CAUSE WHY THE PETITIONERS SHOULD NOT BE RELEASED (SECOND DEPT).
FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).
THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES IF THEY FOUND DEFENDANT NOT GUILTY OF THE HIGHER OFFENSE ON THE BASIS OF JUSTIFICATION, NEW TRIAL ORDERED (SECOND DEPT).
IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).
PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT’S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A JUDGE HAS THE DISCRETION TO EXPUNGE A YOUTHFUL OFFENDER’S DNA RECORDS,... INJURY FROM A CHAIN-LINK FENCE AT A CONSTRUCTION SITE WHICH BLEW OVER ONTO PLAINTIFFS...