CONSTANTINE v. North Corning Volunteer Fire Company, Respondent. (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of CONSTANTINE G. P., as Parent and Natural Guardian of Infant, Christina Maria P., Appellant, v. TOWN OF CORNING, et al., Defendants, North Corning Volunteer Fire Company, Respondent.

Decided: June 10, 1998

Before PINE, J.P., and HAYES, WISNER, BALIO and FALLON, JJ.

Urbanski & Flynn by Raymond Urbanski, Elmira, for Plaintiff-Appellant. Osborn, Reed, Burke & Tobin, LLP by Christian Casini, Rochester, for Defendant-Respondent.

Plaintiff commenced this action on behalf of her 15-year-old daughter, who was sexually molested by defendant Timothy Buckley. Supreme Court properly granted summary judgment to defendant North Corning Volunteer Fire Company (Fire Company) dismissing the complaint against it. It is undisputed that both plaintiff and her daughter were aware of the prior conviction of Buckley for sexually molesting an eight-year-old girl. Thus, the only conclusion to be drawn from the established facts is that the Fire Company's failure to warn plaintiff and her daughter of Buckley's prior misconduct was not a proximate cause of the injuries of plaintiff's daughter (see, Howard v. Poseidon Pools, 72 N.Y.2d 972, 534 N.Y.S.2d 360, 530 N.E.2d 1280; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).

Order unanimously affirmed without costs.

MEMORANDUM:

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