Gaither v. City of New York

Appellate Division of the Supreme Court of New York

Gaither v. City of New York

300 A.D.2d 255, 751 N.Y.S.2d 368, 2002 N.Y. App. Div. LEXIS 13393

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

DecidedDecember 31, 2002

StatusPublished

Cited by6 cases

This text of 300 A.D.2d 255 (Gaither v. City of New York) 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

Gaither v. City of New York, 300 A.D.2d 255, 751 N.Y.S.2d 368, 2002 N.Y. App. Div. LEXIS 13393 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, New York County [256]*256Michael Stallman, J.), entered October 15, 2001, which, upon the grant of renewal, adhered to the prior order of the same court and Justice granting defendant New York City Housing Authority’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court, in granting defendant Housing Authority’s motion for summary judgment dismissing the complaint, properly held that the proximate cause of decedent’s death was his own willful behavior in engaging in the hazardous and illegal activity known as “elevator surfing,” and compensation should not be awarded in such circumstances (see Manning v Brown, 91 NY2d 116; Barker v Kallash, 63 NY2d 19; Matter of McMillan v New York City Hous. Auth., 266 AD2d 153, lv denied 95 NY2d 752; Tillmon v New York City Hous. Auth., 203 AD2d 19). The case of Alami v Volkswagen of Am. (97 NY2d 281) does not require a different result. Unlike the plaintiff in Alami, plaintiff here is not trying to recover for some defect violative of a duty owed to the general public lawfully engaged. Instead, plaintiff seeks to recover for the hazardous and illegal conduct of decedent — the sort of conduct that may not be relied upon by its perpetrator, or, as here, by its perpetrator’s representative, to define a defendant’s duty (see id. at 287). Concur— Sullivan, J.P., Ellerin, Lerner and Gonzalez, JJ.

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—Order, Supreme Court, New York County [256]*256Michael Stallman, J.), entered October 15, 2001, which, upon the grant of renewal, adhered to the prior order of the same court and Justice granting defendant New York City Housing Authority’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court, in granting defendant Housing Authority’s motion for summary judgment dismissing the complaint, properly held that the proximate cause of decedent’s death was his own willful behavior in engaging in the hazardous and illegal activity known as “elevator surfing,” and compensation should not be awarded in such circumstances (see Manning v Brown, 91 NY2d 116; Barker v Kallash, 63 NY2d 19; Matter of McMillan v New York City Hous. Auth., 266 AD2d 153, lv denied 95 NY2d 752; Tillmon v New York City Hous. Auth., 203 AD2d 19). The case of Alami v Volkswagen of Am. (97 NY2d 281) does not require a different result. Unlike the plaintiff in Alami, plaintiff here is not trying to recover for some defect violative of a duty owed to the general public lawfully engaged. Instead, plaintiff seeks to recover for the hazardous and illegal conduct of decedent — the sort of conduct that may not be relied upon by its perpetrator, or, as here, by its perpetrator’s representative, to define a defendant’s duty (see id. at 287). Concur— Sullivan, J.P., Ellerin, Lerner and Gonzalez, JJ.

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Bluebook (online)

300 A.D.2d 255, 751 N.Y.S.2d 368, 2002 N.Y. App. Div. LEXIS 13393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaither-v-city-of-new-york-nyappdiv-2002.

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