EARL v. ADDUCCI

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

Mary Elizabeth EARL and Boyd Earl, Plaintiffs-Respondents, v. Kristin M. ADDUCCI, now known as Kristin M. Vourlias, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Burgio, Kita & Curvin, Buffalo (Steven P. Curvin of Counsel), for Defendant-Appellant. Jeffrey Freedman, Attorneys at Law, Buffalo (Brian D. Knauth of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by Mary Elizabeth Earl (plaintiff) as the result of swallowing a piece of glass in food she ate while attending a dinner party at defendant's home.   Supreme Court properly granted plaintiffs' motion for partial summary judgment on the issues of negligence and proximate cause and to dismiss defendant's first affirmative defense, alleging plaintiff's culpable conduct and assumption of the risk.   Plaintiffs met their initial burden by establishing that defendant, as the property owner, owed a duty of reasonable care to them under the circumstances (see generally Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;  Sweeney v. Lopez, 16 A.D.3d 1174, 1175, 791 N.Y.S.2d 237), that defendant breached that duty, and that plaintiff's injuries were proximately caused by the breach (see Coral v. State of New York, 29 A.D.3d 851, 814 N.Y.S.2d 527), and defendant failed to raise an issue of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: