LI v. MIDLAND ASSOCIATES LLC

Reset A A Font size: Print

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

Johnny LI, etc., et al., appellants, v. MIDLAND ASSOCIATES, LLC, et al., respondents.

Decided: February 28, 2006

A. GAIL PRUDENTI, P.J., THOMAS A. ADAMS, ROBERT A. SPOLZINO, and JOSEPH COVELLO, JJ. Alan R. Inwood, New York, N.Y. (Kevin B. Lynch of counsel), for appellants. Fiedelman Garfinkel & Lesman, New York, N.Y. (Fiedelman & McGaw, Jericho, N.Y. [Dawn C. DeSimone] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated December 3, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The infant plaintiff was crossing the street when he was pushed from behind.   As a result, the infant plaintiff stumbled and fell in front of an apartment building owned by the defendants.   The defendants had left some garbage out for collection, and the infant plaintiff's hand went through two of three panes of glass which had been left exposed on the sidewalk.

 Generally, proximate cause is a question to be decided by the finder of fact (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).  “It is well settled that 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).   Here, the defendants failed to establish as a matter of law that the infant plaintiff's injuries were unforeseeable or that the fact that the infant plaintiff was pushed was a superseding cause which severed any nexus between their alleged negligence and the infant plaintiff's injuries (see Suazo v. Ajay, Inc., 305 A.D.2d 662, 760 N.Y.S.2d 220;  Canela v. Audobon Gardens Realty Corp., 304 A.D.2d 702, 759 N.Y.S.2d 729).

Copied to clipboard