Estate of McMillan v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Estate of McMillan v. New York City Housing Authority

266 A.D.2d 153, 699 N.Y.S.2d 346, 1999 N.Y. App. Div. LEXIS 12368

Appellate Division of the Supreme Court of the State of New York·Decided November 30, 1999·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about July 7, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Neither of plaintiffs experts stated that the interlocking safety mechanism, which the 12-year-old decedent deliberately disengaged to gain entry to the elevator shaft for the purpose of engaging in the dangerous activity of “elevator surfing”, was an insufficient safety device. Accordingly, plaintiff failed to raise any triable issue as to whether defendant had neglected to take reasonable measures to prevent the decedent from gaining access to the elevator shaft (see, Tillmon v New York City Hous. Auth., 203 AD2d 19, 20). Contrary to plaintiffs contention, the attractive nuisance doctrine has no application to the facts at bar. Plaintiff was old enough to be cognizant of the very great and obvious risks involved in “elevator surfing” (see, de Pena v New York City Tr. Auth., 236 AD2d 209, 210, lv denied 90 NY2d 808; cf., Schwartz v Erpf Estate, 255 AD2d 35). Indeed, the proximate cause of decedent’s death was his [154]*154own willful behavior in engaging in an obviously hazardous and illegal activity (see, Tillmon v New York City Hous. Auth., 203 AD2d, supra, at 20). Concur — Sullivan, J. P., Nardelli, Mazzarelli, Wallach and Friedman, JJ.

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—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about July 7, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Neither of plaintiffs experts stated that the interlocking safety mechanism, which the 12-year-old decedent deliberately disengaged to gain entry to the elevator shaft for the purpose of engaging in the dangerous activity of “elevator surfing”, was an insufficient safety device. Accordingly, plaintiff failed to raise any triable issue as to whether defendant had neglected to take reasonable measures to prevent the decedent from gaining access to the elevator shaft (see, Tillmon v New York City Hous. Auth., 203 AD2d 19, 20). Contrary to plaintiffs contention, the attractive nuisance doctrine has no application to the facts at bar. Plaintiff was old enough to be cognizant of the very great and obvious risks involved in “elevator surfing” (see, de Pena v New York City Tr. Auth., 236 AD2d 209, 210, lv denied 90 NY2d 808; cf., Schwartz v Erpf Estate, 255 AD2d 35). Indeed, the proximate cause of decedent’s death was his [154]*154own willful behavior in engaging in an obviously hazardous and illegal activity (see, Tillmon v New York City Hous. Auth., 203 AD2d, supra, at 20). Concur — Sullivan, J. P., Nardelli, Mazzarelli, Wallach and Friedman, JJ.

Estate of McMillan v. New York City Housing Authority, 266 A.D.2d 153, 699 N.Y.S.2d 346, 1999 N.Y. App. Div. LEXIS 12368 (N.Y. Ct. App. 1999).

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266 A.D.2d 153 (Estate of McMillan v. New York City Housing Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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