Brodish v. Diesel Construction Co.

Appellate Division of the Supreme Court of New York

Brodish v. Diesel Construction Co.

32 A.D.2d 785, 302 N.Y.S.2d 356, 1969 N.Y. App. Div. LEXIS 3789

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 1969

StatusPublished

Cited by2 cases

This text of 32 A.D.2d 785 (Brodish v. Diesel Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brodish v. Diesel Construction Co., 32 A.D.2d 785, 302 N.Y.S.2d 356, 1969 N.Y. App. Div. LEXIS 3789 (N.Y. Ct. App. 1969).

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Opinion

In a negligence action to recover damages for personal injury, defendant Jacobson & Co., Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered May 16, 1968, as is in favor of plaintiff against it, upon a jury verdict. Judgment reversed insofar as appealed from, on the law and the facts, with costs, and complaint dismissed. In our opinion, plaintiff was guilty of contributory negligence as a matter of law (cf. Nucci v. Warshaw Constr. Corp., 12 N Y 2d 16; Holgerson v. South 45th St. Garage, 16 A D 2d 255; Giardina v. Bricken Textile Corp., 243 App. Div. 608; 12 NYCRR 23.3 [e]; 23.25 [a], [8]). "If defendant ought to have foreseen an accident of this kind and taken some precaution to * * * [avoid it], then so ought plaintiff to have proceeded in a manner calculated to avoid the danger ” (Nucci v. Warshaw Constr. Corp., supra, p. 19). Unlike the situation in Kaplan v. 48th Ave. Corp. (267 App. Div. 272), plaintiff herein was not faced with the choice of either abandoning the reasonable course of this work or assuming the risk. He could have avoided the danger by the simple expedient of conducting himself in accordance with rule 23.25 (supra), which was promulgated to prevent accidents of the kind involved herein. Were we not dismissing the complaint, we would order a new trial on the ground that the trial court improvidently exercised its discretion in denying appellant’s application for a recess or adjournment for the purpose of affording it an opportunity to put plaintiff’s physician on the stand (cf. Hefele v. City of New York, 25 A D 2d 142; McCabe v. Queensboro Farm Prods., 21 A D 2d 675; O'Malley v. City [786]*786of New York, 16 A D 2d 942; Murphy v. City of New York, 273 App. Div. 492; Dolan v. United Cas. Co., 259 App. Div. 784; Jarvis v. Stoddart, 215 App. Div. 523). Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.

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In a negligence action to recover damages for personal injury, defendant Jacobson & Co., Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered May 16, 1968, as is in favor of plaintiff against it, upon a jury verdict. Judgment reversed insofar as appealed from, on the law and the facts, with costs, and complaint dismissed. In our opinion, plaintiff was guilty of contributory negligence as a matter of law (cf. Nucci v. Warshaw Constr. Corp., 12 N Y 2d 16; Holgerson v. South 45th St. Garage, 16 A D 2d 255; Giardina v. Bricken Textile Corp., 243 App. Div. 608; 12 NYCRR 23.3 [e]; 23.25 [a], [8]). "If defendant ought to have foreseen an accident of this kind and taken some precaution to * * * [avoid it], then so ought plaintiff to have proceeded in a manner calculated to avoid the danger ” (Nucci v. Warshaw Constr. Corp., supra, p. 19). Unlike the situation in Kaplan v. 48th Ave. Corp. (267 App. Div. 272), plaintiff herein was not faced with the choice of either abandoning the reasonable course of this work or assuming the risk. He could have avoided the danger by the simple expedient of conducting himself in accordance with rule 23.25 (supra), which was promulgated to prevent accidents of the kind involved herein. Were we not dismissing the complaint, we would order a new trial on the ground that the trial court improvidently exercised its discretion in denying appellant’s application for a recess or adjournment for the purpose of affording it an opportunity to put plaintiff’s physician on the stand (cf. Hefele v. City of New York, 25 A D 2d 142; McCabe v. Queensboro Farm Prods., 21 A D 2d 675; O'Malley v. City [786]*786of New York, 16 A D 2d 942; Murphy v. City of New York, 273 App. Div. 492; Dolan v. United Cas. Co., 259 App. Div. 784; Jarvis v. Stoddart, 215 App. Div. 523). Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.

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Bluebook (online)

32 A.D.2d 785, 302 N.Y.S.2d 356, 1969 N.Y. App. Div. LEXIS 3789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brodish-v-diesel-construction-co-nyappdiv-1969.

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