Lozier v. Lozier

Appellate Division of the Supreme Court of New York

Lozier v. Lozier

245 A.D.2d 428, 666 N.Y.S.2d 476, 1997 N.Y. App. Div. LEXIS 13108

Appellate Division of the Supreme Court of the State of New York·Decided December 15, 1997·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated January 30, 1997, as denied their cross motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals from so much of the same order as denied her motion for summary judgment against the defendants.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the motion and the cross motion. There are factual questions as to whether the plaintiff was negligent which mandate the denial of her motion (see, Savone v Donges, 122 AD2d 34; see generally, Rotuba Extruders v Ceppos, 46 NY2d 223). Further, contrary to the defendants’ contention, the doctrine of “assumption of risk” does not bar the plaintiff’s action as a matter of law (see, Savone v Donges, supra; see generally, Siegel v City of New York, 90 NY2d 471; cf., Morgan v State of New York, 90 NY2d 471). Rosenblatt, J. P., Miller, Ritter and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated January 30, 1997, as denied their cross motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals from so much of the same order as denied her motion for summary judgment against the defendants.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the motion and the cross motion. There are factual questions as to whether the plaintiff was negligent which mandate the denial of her motion (see, Savone v Donges, 122 AD2d 34; see generally, Rotuba Extruders v Ceppos, 46 NY2d 223). Further, contrary to the defendants’ contention, the doctrine of “assumption of risk” does not bar the plaintiff’s action as a matter of law (see, Savone v Donges, supra; see generally, Siegel v City of New York, 90 NY2d 471; cf., Morgan v State of New York, 90 NY2d 471). Rosenblatt, J. P., Miller, Ritter and Florio, JJ., concur.

Lozier v. Lozier, 245 A.D.2d 428, 666 N.Y.S.2d 476, 1997 N.Y. App. Div. LEXIS 13108 (N.Y. Ct. App. 1997).

Pincite

245 A.D.2d 428 (Lozier v. Lozier) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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