BINGHAM v. LOUCO REALTY LLC

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

Shawn BINGHAM, respondent, v. LOUCO REALTY, LLC, et al., appellants.

Decided: January 30, 2007

GABRIEL M. KRAUSMAN, J.P., ANITA R. FLORIO, ROBERT J. LUNN and JOSEPH COVELLO, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory Cascino of counsel), for appellants. Davis, Saperstein & Salomon, P.C. (Michelle S. Russo, P.C., Rockville Centre, N.Y., of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Harkavy, J.), dated February 15, 2006, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 Generally, issues of proximate cause are to be decided by the finder of fact (see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 659, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).   Moreover, “because the determination of legal causation turns upon questions of foreseeability and ‘what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve’ ” (Kriz v. Schum, 75 N.Y.2d 25, 34, 550 N.Y.S.2d 584, 549 N.E.2d 1155, quoting Derdiarian v. Felix Contr. Corp., supra at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  see Li v. Midland Assoc., LLC, 26 A.D.3d 473, 810 N.Y.S.2d 221).   Here, the defendants failed to establish as a matter of law that the plaintiff's injuries were not a foreseeable consequence of their alleged negligence in improperly repairing the running hot water faucet in his apartment, or that their alleged negligence was not a proximate cause of his injuries (see Mercedes v. Menella, 34 A.D.3d 655, 827 N.Y.S.2d 73;  Li v. Midland Assoc., LLC, supra;  Gottlieb v. 31 Gramercy Park S. Owners Corp., 276 A.D.2d 417, 714 N.Y.S.2d 484;  Parker v. New York City Hous. Auth., 203 A.D.2d 345, 610 N.Y.S.2d 539;  Daughtery v. City of New York, 137 A.D.2d 441, 524 N.Y.S.2d 703;  Pagan v. Goldberger, 51 A.D.2d 508, 382 N.Y.S.2d 549).   Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

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