Morrissey v. Simmons

Appellate Division of the Supreme Court of New York

Morrissey v. Simmons

128 A.D.2d 759, 513 N.Y.S.2d 246, 1987 N.Y. App. Div. LEXIS 44444

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

DecidedMarch 23, 1987

StatusPublished

This text of 128 A.D.2d 759 (Morrissey v. Simmons) 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

Morrissey v. Simmons, 128 A.D.2d 759, 513 N.Y.S.2d 246, 1987 N.Y. App. Div. LEXIS 44444 (N.Y. Ct. App. 1987).

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Opinion

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Marasco, J.), dated September 16, 1985, as denied his cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

A review of the record indicates that there are triable issues of fact relating to the infant defendant’s striking the infant plaintiff, Kathleen Morrissey, in the eye with a snowball (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Thorne v Burr, 41 AD2d 662), including the reasonableness of the infant plaintiff’s actions under the circumstances of the case (see, Andre v Pomeroy, 35 NY2d 361; Prosser and Keeton, Torts §32, at 179 [5th ed]). Therefore, we find that Special Term properly denied the defendant’s cross motion for summary judgment. Mollen, P. J., Thompson, Rubin and Kunzeman, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Marasco, J.), dated September 16, 1985, as denied his cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

A review of the record indicates that there are triable issues of fact relating to the infant defendant’s striking the infant plaintiff, Kathleen Morrissey, in the eye with a snowball (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Thorne v Burr, 41 AD2d 662), including the reasonableness of the infant plaintiff’s actions under the circumstances of the case (see, Andre v Pomeroy, 35 NY2d 361; Prosser and Keeton, Torts §32, at 179 [5th ed]). Therefore, we find that Special Term properly denied the defendant’s cross motion for summary judgment. Mollen, P. J., Thompson, Rubin and Kunzeman, JJ., concur.

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Bluebook (online)

128 A.D.2d 759, 513 N.Y.S.2d 246, 1987 N.Y. App. Div. LEXIS 44444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrissey-v-simmons-nyappdiv-1987.

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