Gonzalez v. Diaz

Appellate Division of the Supreme Court of New York

Gonzalez v. Diaz

292 A.D.2d 169, 739 N.Y.S.2d 359, 2002 N.Y. App. Div. LEXIS 2287

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

DecidedMarch 5, 2002

StatusPublished

This text of 292 A.D.2d 169 (Gonzalez v. Diaz) 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

Gonzalez v. Diaz, 292 A.D.2d 169, 739 N.Y.S.2d 359, 2002 N.Y. App. Div. LEXIS 2287 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered April 25, 2001, which granted defendant’s motion to set aside the verdict to the extent of setting aside the verdict on the issue of liability only unless plaintiff stipulated to an apportionment assigning him 40% and defendant 60% of the fault, instead of the 100% apportion[170]*170ment the jury made against defendant, unanimously affirmed, without costs.

Plaintiff sustained an injury when, volunteering to help clean up after a barbeque at defendant’s house by carrying a wooden bench from the patio towards the front of the house, he fell over the ledge of the patio and stepped into a “crack coming from the drain.” Even if, as the jury apparently found, unsafe conditions on the property itself were exacerbated by dim lighting around the patio, plaintiff did admit that he had observed children trip over the crack several hours earlier, and indeed notified defendant of the hazard. Based on this admission, it is not clear how the jury could have assigned no fault to plaintiff whatsoever (cf., Pellicane v Lambda Chi Alpha Fraternity, 228 AD2d 569, 570). Concur — Andrias, J.P., Saxe, Rosenberger, Wallach and Buckley, JJ.

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Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered April 25, 2001, which granted defendant’s motion to set aside the verdict to the extent of setting aside the verdict on the issue of liability only unless plaintiff stipulated to an apportionment assigning him 40% and defendant 60% of the fault, instead of the 100% apportion[170]*170ment the jury made against defendant, unanimously affirmed, without costs.

Plaintiff sustained an injury when, volunteering to help clean up after a barbeque at defendant’s house by carrying a wooden bench from the patio towards the front of the house, he fell over the ledge of the patio and stepped into a “crack coming from the drain.” Even if, as the jury apparently found, unsafe conditions on the property itself were exacerbated by dim lighting around the patio, plaintiff did admit that he had observed children trip over the crack several hours earlier, and indeed notified defendant of the hazard. Based on this admission, it is not clear how the jury could have assigned no fault to plaintiff whatsoever (cf., Pellicane v Lambda Chi Alpha Fraternity, 228 AD2d 569, 570). Concur — Andrias, J.P., Saxe, Rosenberger, Wallach and Buckley, JJ.

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Bluebook (online)

292 A.D.2d 169, 739 N.Y.S.2d 359, 2002 N.Y. App. Div. LEXIS 2287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-diaz-nyappdiv-2002.

Opinion

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