FINGUERRA v. CONN

Reset A A Font size: Print

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

Mark FINGUERRA, Plaintiff-Respondent, v. Stephen CONN, et al., Defendants,

Summer Activities, Inc., et al., Defendants-Appellants. Jetline Products of Long Island, Inc., Fourth-Party Plaintiff, v. Cardinal Systems, Fourth-Party Defendant-Appellant. [And Other Actions].

Decided: February 22, 2001

ROSENBERGER, J.P., NARDELLI, ELLERIN, SAXE and FRIEDMAN, JJ. Andrew B. Weiner, attorney for the Plaintiff-Respondent. Loretta A. Redmond, James K. O'Sullivan and Brendan T. Fitzpatrick, attorneys for the Defendants-Appellants.

Order, Supreme Court, New York County (Beverly Cohen, J.), entered January 4, 2000, which denied the motions by defendants Summer Activities, Jetline Products, Dover Vinyl Products, and fourth-party defendant Cardinal Systems, for summary judgment dismissing, inter alia, plaintiff's complaint, unanimously reversed, on the law, without costs, and the motions granted.   The Clerk is directed to enter judgment in favor of appellants dismissing the complaint and the fourth-party complaint and all claims against them.

 This court's prior determination (reported at 252 A.D.2d 463, 676 N.Y.S.2d 154), rejecting plaintiff's negligence claim against the owners of a swimming pool, on the basis that plaintiff's own reckless conduct in consuming alcoholic beverages and then diving into a section of the pool where the water was not deep enough to safely support his dive, even though he was familiar with the pool and its contours, was the proximate cause of his injuries, bars plaintiff's product liability claims against the non-owner defendants (see, People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232).   Under both negligence and product liability theories, plaintiff's reckless conduct was the proximate cause of his injuries, regardless of defective products or the pool owners' failure to warn potential users of the varying depths of the pool (see, Campbell v. Muswim Pools, Inc., 147 A.D.2d 977, 537 N.Y.S.2d 412, lv. denied, 74 N.Y.2d 608, 545 N.Y.S.2d 104, 543 N.E.2d 747;   Belling v. Haugh's Pools Ltd., 126 A.D.2d 958, 511 N.Y.S.2d 732, lv. denied, 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550).