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

Appellate Division of the Supreme Court of the State of New York·Decided March 23, 1987·Published

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.

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

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