D'Ancona v. Town & Country Mar. Corp.

Opinion

D'Ancona v Town & Country Mar. Corp.

2026 NY Slip Op 05006

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Michele A. D'Ancona, etc., appellant,

v

Town and Country Marina Corp., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2023-10244, (Index No. 600897/19)

Cheryl E. Chambers, J.P.

Paul Wooten

Lillian Wan

Phillip Hom, JJ.

Sullivan Papain Block McManus Coffinas & Cannavo, P.C., New York, NY (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellant.

Clyde & Co US LLP, New York, NY (James H. Rodgers and Victoria L. Dunlop of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated October 16, 2023. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

In 2018, Peter Rocco D'Ancona (hereinafter the decedent) died while onboard his boat of carbon monoxide poisoning caused by a crack in a hose connected to a gas generator being used to supply electricity to the boat, which caused the boat's cabin to fill with carbon monoxide. Shortly before the fatal accident, the decedent had hired the defendants, the owners of the marina in which his boat was docked, to "remove" and "reinstall" the gas generator. Thereafter, the plaintiff, the decedent's sister, as administrator of the decedent's estate, commenced this action against the defendants, alleging, inter alia, that they negligently repaired and/or installed the generator and/or its component parts and that they failed to test the generator. The defendants moved for summary judgment dismissing the complaint. In an order dated October 16, 2023, the Supreme Court granted the motion. The plaintiff appeals.

"The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury" (Ruiz v Griffin, 71 AD3d 1112, 1114; see Ferrezza v Das, 210 AD3d 742, 743). "'[T]he scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived'" (Ruiz v Griffin, 71 AD3d at 1114, quoting Sanchez v State of New York, 99 NY2d 247, 252). "Even when no original duty is owed to the plaintiff, once a defendant undertakes to perform an act for the plaintiff's benefit, the act must be performed with due care for the safety of the plaintiff" (id. [alteration and internal quotation marks omitted]).

Here, the defendants failed to establish, prima facie, that they did not owe the decedent a duty of care (see Ferrezza v Das, 210 AD3d at 743-744). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint, the [*2]Supreme Court should have denied their motion, regardless of the sufficiency of the plaintiff's opposition papers (id. at 744).

In light of our determination, the plaintiff's remaining contentions need not be reached.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court